PERIYA KARUPAN CHETTIAR Vs. SOMASUNDARAM CHETTI

JUDGEMENT

(1.) THE question is whether Somasundaram Chettiar is a person entitled to share in the rateable distribution of the proceeds of the sale in execution in the District Munsif's Court and so competent to maintain his petition under Rule 90 of Order 21, Civil Procedure Code to set that sale aside. Somasundaram Chettiar never applied to the District Munsif's Court for the execution of his decree; but before the sale he had applied for execution to the Subordinate Judge's Court and had attached the property in question. Under Section 63, Civil Procedure Code, the proper Court to realise the property was the Court of higher grade that is the Subordinate Judge's Court. But apparently in ignorance of the attachment in the Subordinate Judge's Court the District Munsif ordered sale in his Court. THE learned District Judge is of opinion that in this case the proceeds of the sale though actually received by the District Munsif must be deemed to have been received by him on behalf also of the Subordinate Judge's Court, in which the property had been attached. He adopts this view on the strength of Narashimachariar V/s. Krishnama chariar , where it was decided that, when certain money had been attached by several Courts but collected by the Court of highest grade in accordance with Section 63, Civil Procedure Code, receipt of the money by the highest Court must be regarded as receipt by or on behalf of all the Courts concerned in which the money had been attached. It is argued for petitioner that the converse of that fiction ought not to be adopted, viz., that receipt of assets by a Lower Court should be deemed to be also receipt By or on behalf of a Court of a higher grade in which the property has been attached. In the present case I do not think it necessary to apply any such fiction. THE Subordinate Judge could have and should have called for the proceeds of the sale from the District Munsif's Court in order that they might be distributed in the Subordinate Judge's Court in accordance with the principle of Section 63, Civil Procedure Code. THEre was the course declared to be correct in Deekappa Mallappa V/s. Charibasappa Rachappa (1925) I.L.R. 49 Bom. 655. I prefer to follow that deciL sion rather than Milkanta Rat V/s. Gosto Behar Chatterjee (1917) I.L.R. 46 Cal. 64, in which the opinion was expressed that an application would be made to the District Judge for the transfer of the sale proceeds. But to prevent any possible difficulties I now direct, as was directed in both the cases just mentioned, that the sale proceeds be transferred from the District Munsif's Court to the Subordinate Judge's Court. Somasunda-ram Chettiar is undoubtedly a person entitled to share in a rateable distribution of these sale proceeds in the Subordinate Judge's Court. He is therefore in my opinion a person entitled to attack the sale in the District Munsif's Court under Rule 90 of Order 21, Civil Procedure Code. THE fact that the sale proceeds had not reached the Subordinate Judge's Court at the time when he made the application to the District Munsif under Rule 90 did not prevent him from being a person entitled to share in a rateable distribution within the meaning of that rule, though the distribution could not be actually made until the proceeds reached the proper Court for distributing them. I therefore agree with the order of the learned District Judge in the present case though not exactly for his reasons. Subject to the direction given above for the transfer of the sale proceeds to the Subordinate Judge's Court this petition is dismissed with costs.