DEBI BUX Vs. RAMESWAR PRASAD NARAIN SINGH

JUDGEMENT

(1.) This is an application under Section 115, Civil Procedure Code, against the order of the Subordinate Judge allowing rateable distribution in the following circumstances. Mr. Sushil Madhab Mullick who appears on behalf of the appellant, has stated the facts in the following convenient way; A obtains a preliminary decree against B. X who is the appellant in this case obtains a money decree against A and Y, the respondent represented by Mr. Mukharji, also obtains a money decree against A. X, the appellant, attaches the preliminary mortgage decree and presumably under Order XXII, Rule 10, Civil Procedure Code, is allowed to proceed in the mortgage action and obtains a final decree against B for sale of the property. He proceeds to sell the property in execution of the final mortgage-decree which he obtained. Then Y comes along with this application under Section 73, Civil Procedure Code, asking for rateable distribution. We have listened to attractive arguments on both sides and it is a somewhat difficult matter to arrive at a conclusion. Mr. Mullick's argument shortly is that what is being sold here is not the preliminary decree which was attached, and the proceeds which will result from the sale of the mortgaged-property are not the proceeds or assets within the meaning of Section 73 of the Code, as a result of the sale of the? decree; but what is being sold is the mortgaged-property as the result of the final decree which Mr. Mullick's client (the appellant) obtained in pursuance of the attachment which I have already mentioned.

(2.) On the other hand it is contended on behalf of the respondents that what is being sold is the property of the judgment-debtor A, and the fact that the appellant was allowed to proceed to obtain a final decree is nothing more than the machinery which under the law he was allowed to adopt for the purpose of bringing the assets into the Court, and furthermore that the appellant, as a decree-holder in a simple money suit against A, cannot advance or strengthen his position by the procedure which he has adopted in this case in obtaining the final decree in the mortgage suit; in other words, had he been--indeed it is argued that he did remain as--a simple money decree-holder, there would have been no question about the respondents right to rateable distribution and nothing has happened which prevents that right being exercised. Of the two views I am rather inclined to accept the second. One cannot lose sight of the fact that originally he had a simple money decree against A and in justice his right should depend upon the rights which he had as a simple money decree-holder against A, and not any rights which he may have now acquired.

(3.) But I propose to decide the matter on another ground. My view of Section 115, Civil Procedure Code, is well-known, and I cannot see that in this case any question of jurisdiction arises. Mr. Sushil Madhab Mullick has quoted a number of authorities and referred to a decision of their Lordships of the Privy Council in which they have held by inference that the High Court has jurisdiction to interfere in a question of law or fact where a matter of jurisdiction arises. Personally I have never doubted that position of law; but in my judgment the appellant here is confusing the right of the respondent to rateable distribution with the right of the Judge to decide the question. It would have been impossible for either side to put in a preliminary objection that the Judge had no jurisdiction to decide the question of rateable distribution, and certainly had the case been decided in favour of the appellant, we would have heard nothing more about the matter. The Judge in my opinion had jurisdiction to decide the question, and I think, although it is obiter so far as my decision is concerned, that he decided the case rightly. In my view, therefore, the application is dismissed with costs : hearing fee five gold mohurs payable to respondent Mo. 1. Varma, J.