VISWANATHAM KRISHTIAH Vs. YARRABANDA PEDDA VENKATA REDDY

JUDGEMENT

(1.) The decree-holder in O.S. No. 112 of 1932 on the file of the District MunsifFs Court of Kurnool is the appellant before us. He obtained a money decree against respondents 1 to 3. Against the same respondents the fourth respondent before us had obtained a decree in O.S. No. 26 of 1930 on the file of the sub-Court of Kurnool. He applied by E.P. No. 7 of 1932 for attachment of the properties of the judgment-debtors on 26 October, 1932. The sale of the properties was adjourned to 22nd August, 1933. On that date the appellant filed E.P. No. 638 of 1933 in the District Mun-siff's Court for execution of his decree. On the same date he filed an application for rateable distribution, in the District Court of Kurnool. The question was whether he was entitled to rateable distribution. The lower court dismissed his application and this appeal is against that order of dismissal.

(2.) A preliminary objection is taken that no appeal lies as the dispute in this case relates solely to questions between two rival decree-holders and the judgment-debtors are not interested in the dispute in any manner. The amount sought to be obtained by execution of the decree by the fourth respondent is a sum of Rs. 4,333-1-6. The sale of the properties fetched Rs. 3,525. The amount of the decree of the appellant is Rs. 500 with costs. It is clear that the judgment-debtors are not in any way interested in the question as to whether the amount realised by sale of the properties should be rateably distributed between the rival decree-holders. In a case like this where the question relates only to a dispute between rival decree-holders in which the judgment-debtors are not interested it has been held by this Court that the question is not one which arises under Section 47 of the Civil Procedure Code and the decision is not therefore liable to appeal. See Varada Rama-swami V/s. Venkataratnam (1921) 42 M.L.J. 473 See also the decision in Ayisa Bivi V/s. Jokara Bivi . The appellant's learned Counsel seeks to distinguish these cases by saying that in his suit the decree-holder had before obtaining judgment attached the property and since he had so attached it he gets an interest in the property and he becomes a representative of the judgment-debtor; and so the dispute is between parties to the suit within the meaning of Section 47. No authority in support of this contention has been brought to our notice. Reference has been made to certain obsenations in the decision in Veyindramuthu Pillai V/s. Maya Nadan (1919) I.L.R. 43 Mad. 107 : 38 M.L.J. 32 (F.B.) where the learned Judges held that an auction-purchaser is representative of the judgment-debtor. Having regard to the fact that case is not one which arises under Section 73, we are not inclined to extend the principles mentioned in that decision to this case. In our opinion this case must be governed by the decisions in Varada Ramaswatni v. Venkataratnam (1919) I.L.R. 43 Mad. 107 : 38 M.L.J. 32 (F.B.) and Ayisa Bivi V/s. Jokara Bivi referred to above. If so, the appeal is incompetent.

(3.) We are asked also to treat this appeal as a revision petition and deal with it on that basis. To our minds it does not appear that there is any question of jurisdiction involved in this appeal.