MEGRAJ ISWARADAS Vs. CORPORATION OF MADRAS

JUDGEMENT

(1.) This appeal raises a point not covered by authority; before dealing with it, we shall first dispose of certain other matters which have been argued.

(2.) The first question to be decided is this. Section 73, Civil Procedure Code, provides that those decree-holders alone are entitled to rateable distribution who have applied for execution to the Court by which the assets are held. Mr. T.M. Krishnaswami Aiyar's contention is in effect, that this is a self-contained rule and is not to be read as controlled by or being subject to, the provision embodied in Section 63. To accept this contention would be to defeat and render nugatory the last-mentioned section. Section 63 must be treated as constituting an exception to Section 73 in this respect. Although the decree-holder claiming rateable distribution should ordinarily, as prescribed by Section 73, have applied for execution to the Court by which the assets are held, Section 63, recognizing an exception, lays down when and to what extent this rule may be departed from. Where, as is stated in Section 63, the property is under attachment in execution of decrees. of more Courts than one, if the other conditions specified in Section 73 are fulfilled, the right to rateable distribution arises. By adopting this construction alone, we can give full effect to both the sections mentioned. In Narasimhachariar V/s. Krishnamachariar the facts are thus stated in the judgment of Wallis, J., as he then was, In the present case a debt due to the judgment-debtor by the Public Works Department and attached in execution of several decrees against the judgment- debtor in several Courts has been paid into this Court under Section 63 and Order 21, Rule 36 Civil Procedure Code by the Executive Engineer who has at the same time forwarded a list of the attachments served on him up to that time, one of which was prior in date to the attachment by this Court. The case then came before me sitting alone, when the prior attaching creditor who has not transferred his decree to this Court, claimed to be paid in priority to the decree-holder in this Court, or at least to be entitled to rateable distribution; and in view of the importance of the question and the conflict of decisions, I directed the case to be posted before a Bench and notice to be served upon all the creditors mentioned by the Executive Engineer as having attached before payment into this Court; and they have now appeared and preferred their claim to rateable distribution.

(3.) It was held by Wallis and Bakewell, JJ., that the decree-holders in the other Courts were entitled to rateable distribution. It will be seen that the Court which held the assets was the High Court; nevertheless all the creditors, who had attached the debt in the several Courts, were held entitled. There, the Court that held the assets was a Court of higher grade; but the position may be reversed for, that would make no difference in principle.