JOHN CARAPIET GALSTAUN Vs. WOOMESH CHANDRA BANNERJEE

JUDGEMENT

(1.) We are invited in this Rule to set aside an order made in a proceeding for rateable distribution under Section 73, Civil Procedure Code. The sequence of events which led to the order in question is really not in controversy and may be briefly stated. On the 23rd August 1915, one Banerjee, now opposite party in this Rule, obtained a decree for Rs. 22,441 against Sullivan on the Original Side of this Court. On the 26th August 1915, one Mohammad Abbas obtained a consent decree against Sullivan for Rs, 5,200 in the Court of the Subordinate Judge of the 24-Pergan-nahs. On the 31st August 1915, Galstaun, petitioner in this Rule, obtained a decree for Rs. 8,105 against Sullivan on the Original Side of this Court. On the 21st and 22nd September 1915, a considerable sum was realised by a sale of the moveable properties of the judgment-debtor held by Mackenzie Lyall and Co. under the orders of the Subordinate Judge. The question in controversy is whether Galstaun is entitled to rateable distribution of the sale- proceeds. To appreciate the precise position of the rival claimants, we must examine in detail the proceedings taken for execution of the three decrees.

(2.) As regards the first decree, we find that a precept was on the 24th August 1915 sent to the Court of the Subordinate Judge under Section 46, Civil Procedure Code, and the moveable properties of the judgment-debtor were attached on that basis. On the 6th September 1915, an order was made by this Court for transfer of the decree to the Court of the Subordinate Judge of the 24-Pergannahs for execution. As regards the second decree, we find that Abbas applied for execution on the 8th September 1915. On that very day, an order was made for sale of properties by Mackenzie Lynll and Co., but the proceeding thus initiated was dismissed on the 20th September, as Abbas had in the interval transferred the decree to Banerjee. On that very day, Banerjee made an application to execute the decree as assignee thereof. The sale previously mentioned was held by Mackenzie Lyall and Co. on the 21st and 22nd September 1915. As regards the third decree, we find that Galstaun was not able to obtain an order for transfer from this Court to the Court of the Subordinate Judge, till the 15th December 1915; and his application for execution was not made before the Subordinate Judge till the 14th March 1916. Mackenzie Lyall & Co. sent a cheque to the Subordinate Judge on the 15th March 1916 for Rs. 12,637, the net proceeds in their hands. The question arises, whether, in these circumstances, Galstaun is entitled to obtain rateable distribution under Section 43, Civil Procedure Code.

(3.) The first sub-section of Section 73 is in these terms; "Where assets are held by a Court, and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons." Two of the requisite elements are established in this case; namely, first, assets are held by the Court of the Subordinate Judge; and secondly, each of the decree-holders has obtained a decree for payment of money against the same judgment-debtor and has not obtained satisfaction thereof. The question, consequently, reduces itself to this: who among the rival claimants did, before the receipt of the assets by the Court, make an application to the Court for execution of his decree? In the determination of the question, two points require consideration, namely, first what was the true position of Mackenzie Lyall and Co. when they held the sale of the moveable properties on the 21st and 22nd September 1915; did they hold the sale as the agent of the Court or as the agent of the judgment-debtor Sullivan? Secondly, was the receipt of money by the auctioneers equivalent to "receipt of assets by the Court" within the meaning of Section 73, Code of Civil Procedure?