AHINATH GANGULI Vs. NEPAL CHANDRA GHOSH

JUDGEMENT

(1.) The facts of this case lie within a short compass and are for the most part undisputed. The petitioner obtained a decree for a large amount of money against 13 persons who have been made opposite parties Nos. 2 to 14 in this Rule. The decree was executed in Execution case No. 13 of 1935 in the Court of the Third Subordinate Judge at Alipur and on the 28 March 1935 one plot of land at Baranagore and three house properties at Benares were attached. The opposite party No. 1 happens to be a decree-holder against nine of the identical judgment-debtors, namely, opposite parties Nos. 2 to 6 and 11 to 14 and he executed his decree in Execution Case No. 39 of 1935 of the Court of the Second Additional Subordinate Judge at Alipur. In this execution case some properties were attached on the 28 May 1935 and the one common property which was attached by both the creditors is the one plot of land at Baranagore. The sale in execution case No. 39 of 1935 was held on the 16 September 1935 and on that day it appears that the petitioner made an application before the Second Additional Subordinate Judge and his prayers were of a two fold character. In the first place, he prayed that as under Section 63, Civil P.C., the proper Court to hold the sale was the third Subordinate Judge at Alipore, the records of the execution case No. 39 of 1935 should be sent to that Court. In the alternative, he prayed that the decree-holder's prayer for set-off should not be allowed. The learned Subordinate Judge rejected both these prayers by two orders remarking that the petitioner had ample opportunity of moving in this matter beforehand and he had no justification for waiting till the actual date of the sale.

(2.) It is against these orders that the present Rule has been obtained and Mr. Chandra Sekhar Sen who appears in support of the Rule has put forward one point only namely, that the prayer of his client for disallowing set-off to the opposite party No. 1 should have been allowed. He argues that if the opposite party No. 1 was compelled to pay cash money he could have applied for rateable distribution under Section 73, Civil P.C. and could have got a substantial portion of the money for which the properties were sold. Now, the application for set-off is regulated by Order 21, Rule 72, Civil P.C. and Sub-section (2) expressly makes it subject to the provisions of Section 73, Civil P.C. If therefore, more than one decree-holder applies for execution the amount due on the decree to the decree-holder purchaser is the amount to which he would be entitled on a rateable distribution under Section 73. But if there is no application before the Court which holds the sale and the Court allows a set-off for the whole amount, the sale is undoubtedly protected under Section 63, Sub-section (2), Civil P.C.: vide Shidappa Laxmanna V/s. Gurusangya Akhandaya AIR 1931 Bom 350. It is not enough to say that he would make an application for rateable distribution after the sale was held and before the entire purchase money was paid down. The Court holding the sale must be the Court also who was called upon to make rateable distribution and the existence of circumstances specified in Section 73 are a condition precedent to the rival decree-holders having a right to compel the decree-holder purchaser to deposit money in cash.

(3.) Under the circumstances of this case, as the sale is valid and Mr. Sen has not impeached it as invalid in any way the proper procedure has been indicated in cases of this Court of which the case in Nilkanta Rai V/s. Gosto Behari Chatterjee AIR 1919 Cal 545 may be taken as a type. The executing Court in the circumstances adopted the sale held by another Court even though it was in contravention of the provisions of Section 63 and it has a right to call for the surplus sale proceeds in a proper way. As we are informed that in this case the property was knocked down for Rs. 200 only and the decretal amount amounted to over Rs. 93,000 there can be no question of any surplus left after the set-off is allowed by the Court. We are, therefore, unable to give any relief to the petitioner under the circumstances of this case as the sale cannot be impeached in view of Sub-section (2) of Section 63 which was introduced by the amending Act of 1908. The Rule is accordingly discharged with costs one gold mohur. M.C. Ghose, J.