R. S. KHOLKUTE Vs. TUKARAM KUNBI

JUDGEMENT

(1.) 1. The facts of this case-are sufficiently clear from the lower-Court's order and need not be repeated here. The present applicants were decree-holders against non-applicant 3. Baldeopuri in Suit No. 7 of 1925. The latter's malik makbuza fields had been attached and were sold on 7th March 1927, and the proceeds some Rs. 5,700 were all paid into Court on 16th March 1927. Meanwhile, the non-applicant 1, Tukaram, applied for rateable distribution in the lower Court on 25th February 1927, under Section 73, read with Order 21, Rule 11, Civil P.C. In the case of Tukaram's decree, execution application had been made on 21st August 1926, but it was dismissed in November of the same year. A second application followed on 17th January 1927, and the fields were attached, but the second application was dismissed on 25th February 1927. The actual certificate was, however, not received until 26th April in the same year, and the question which remains for consideration is whether rateable distribution was properly allowed by the lower Court, although the decree had not been transferred at the time of the application to this Court.

(2.) A view favourable to the present applicants has been taken by the Bombay High Court in Nimbaji Tulsiram v. Vadia Venkati [1892] 16 Bom. 683 and in Dattatraya v. Rahimtulla Nurmahomed Khoja [1894] 18 Bom. 456. The view taken in Nimbaji Tulsiram v. Vadia Venkati [1892] 16 Bom. 683 was, however, overruled by a Full Bench of the Bombay High Court in Chhotalal v. Nabibhai [1905] 29 Bom. 528 and it may be said, therefore, that there is now a uniformity of agreement between the various High Courts on the point involved so far as non-applicant 1 is concerned : of. Clark v. Alexander [1894] 21 Cal. 200, Har Bhagat Das v. Anandaram [1898] 2 C.W.N. 126, Narasimhachariar v. Krishnamachariar [1914] 26 M.I.J. 406 and Arimuthu Chetty v. Vyapuri Pandaram [1911] 35 Mad. 588. The point involved has again and again been considered in these and other similar cases and I see not the slightest ground for once more reopening this matter. I may point out that there is no express rovision of law that there should be an actual transfer of the decree to the Court ranting rateable distribution in this connexion I may also refer to the provision contained in Sub-section (2), Section 63, Civil P.C. So far as non-applicant 1, Tukaram is concerned, therefore, I am of opinion that the order of the lower Court was a correct one.

(3.) THESE findings govern the application which is dismissed. The applicants must bear the non-applicants' costs. Costs in the lower Court as already ordered. I fix Rs. 20 as pleader's fees, costs accordingly to be allowed separately to non-applicants (1) and (2) in this Court.