GODAVARIBAI GOVINDRAO SASWADKAR Vs. DEEKAPPA MALLAPPA

JUDGEMENT

(1.) [His Lordship after setting out the facts as stated above proceeded:] It has been urged on behalf of the applicant before us that the assets were held by the First Class Subordinate Judge, and before the receipt of the assets in question he had applied to the Court for execution of the decree for payment of the money passed against the judgment-debtor within the meaning of Section 73 of the Code. In short the applicant's contention is that the assets were received for the purposes of Section 73 of the Code by the First Class Subordinate Judge at Dharwar when the money was actually sent by the Hubli Court to the Dharwar Court in pursuance of the order made by the Hubli Court.

(2.) On behalf of the opponents who have appeared before us, it has been urged that having regard to the provisions of Section 63 of the Code, the Court at Hubli really received the amounts for and on behalf of the Court at Dharwar and held them as agent or trustee for the Dharwar Court after the Court at Dharwar intimated to the Court at Hubli that opponent No. 1 was claiming rateable distribution in the amount that would be realised by that Court. In support of this contention the decision in Dattatraya V/s. Pundalik has been relied upon, and it is urged that just as the receipt of the money by the Collector in that case was held to be receipt by the Court within the meaning of Section 73 of the Code, similarly here the receipt of the assets by the Hubli Court should be held to be receipt by the Dharwar Court within the meaning of Section 73, Civil Procedure Code.

(3.) We have considered the arguments urged on both sides. We have also called for the necessary papers to know exactly what the nature of the communication by the First Class Subordinate Judge at Dharwar in Darkhast No. 123 of 1923 was, in order to be able to deal with the contentions of the parties. The position of the Collector, to whom a decree is transferred for execution, with reference to the Court which has transferred its decree for execution to the Collector, is regulated by the provisions of the Civil P. C. including the provisions of the Third Schedule of the Code. When the ratio decidendi of the case in Dattatraya V/s. Pundlik is examined, it would appear that the decision is not based upon the view that the Collector is an agent of the Court, but that the money received by the Collector under the provisions of the Civil P. C. is distributable under the orders of the Court, and is held by the Collector subject to the orders of the Court. It is clear, therefore, that that case is quite different from the present case and that the decision is based upon the special provisions relating to execution of decrees by the Collector.