RAMJASH AGARWALA Vs. GURU CHARAN SEN

JUDGEMENT

(1.) We are invited in this Rule to discharge an order made on the 11 March 1909 by the Court below under Section 295 of the Civil P. C. of 1882. The circumstances under which the order in question was made are not disputed and may be briefly stated. On the 6 October 1907, the petitioner, Rain-jash Agarwala, obtained a decree for money against Imsan Bewa and others in the Court of the Subordinate Judge of Farid-pur. Shortly after, he applied for execution and on the 29 April 1908 obtained an order for attachment of certain immovable properties of the judgment-debtors, which were directed to be sold on the 28 July 1908. The sale, however, did not take place on that date and on the 20 August 1908 leave was granted to the decree-holder to bid at the sale to be held on the 21st November following. On the latter day, the properties were sold by auction and many of them were purchased by the decree-holder. The amount realised by the sale was set off against the decree and the sale was confirmed on the 9 March 1909. Meanwhile Guru Charan Sen, the opposite party, had on the 8 August 1908 obtained a decree for money against the same judgment-debtors in the Court of the Munsif of Goalundo. On the 27 August 1908, Guru Charan Sen made an application for execution in the Goalundo Court which directed attachment of the properties previously attached by the order of the Faridpur Court and the 20 November 1908 was fixed for the sale of the properties. On the 19 September 1908, Guru Charan applied to the Subordinate Judge of Farid-pur for an order on the Munsif of Goalundo not to sell the properties; in this petition ho further prayed for rateable distribution of the assets which might be realised by sale in the Faridpur Court. The Subordinate Judge rejected the first prayer and directed that the second prayer might be considered when the assets were realised. Guru Charan then applied on the 17 November 1908 to the Goalundo Court for transmission of his execution case to the Faridpur Court. This application was refused. A similar application was made to the District Judge on the 20 November and was. equally, unsuccessful. On the 21 November, the Goalundo Court proceeded to sell the attached properties and to distribute the sum realised rateably between Guru Charan and another decree-holder of the same judgment-debtors. Subsequently the sale and the order for distribution made by the Goalundo Court wore set aside, apparently on the ground that the properties had been attached and sold by the Faridpur Court and could not be sold a second time. On the 22 December, 1908 Guru Charan applied to the Faridpur Court for rateable distribution of the sum realised by the sale of the 21 November 1908 at the instance of the present petitioner. The latter objected to any order for rateable distribution, but his objection was overruled and on the 16 February 1909, the Subordinate Judge held that Guru Charan was entitled to an order for rateable distribution. This was followed by the order of the 11th March 1909, which directed the present petitioner to refund the sum which had already been applied in satisfaction of his own decree. This is the order the legality of which we are now invited to consider.

(2.) In support of the order, it has been contended by the learned Vakil for the opposite party that although Guru Charan had not-got his decree transferred from the Goaluudo Court to the Faridpur Court and had not at any time applied for execution to the latter. Court so as to bring the case within the scope of Section 295, Civil Procedure Code, yet he was entitled to the benefit of Section 285 of the Code and the order which is now called in question may be treated as one made under the latter section. To establish this position, reliance has been placed upon the cases of Clark V/s. Alexander 21 C. 200 and Mar Bhagat Das Marwari v. Anandaram Marwari 2 C.W.N. 126 Reference has also been made to the case of Madden v. Chappani 11 M. 356 to show that the Court had jurisdiction to make the order for refund if the assets realised by the sale were found to have been improperly applied in satisfaction of the decree of the petitioner. On the other hand, the order in question has been assailed on the ground that, it could not be made under Section 295, Civil Procedure Code, and that Section 285 had no possible application to the case; and in support of this view reliance has been placed upon the cases of Nimbaji Tulsiram V/s. Vadia Venhati 16 B. 683; Andanapa V/s. Bhimrao Annaji 19 B. 539 and Bejoy Singh Dudhuria V/s. Hukum Ckand 29 C. 548. The question raised is one of considerable importance and not altogether free from difficulty, and it is necessary to examine closely the provisions of the Code so that a correct conclusion may be reached on the subject.

(3.) Section 295 of the Civil Procedure Code of 1882 deals with the question of the rateable distribution of the proceeds of the execution sales among decree-holders. As was observed by Strachey, C. J. in Bithal Das V/s. Nand Kishora 23 A. 106, the object of the section is two-fold. "The first object is to prevent multiplicity of execution proceedings, to obviate in a case where there are many decree-holders competent to execute their decrees by attachment and sale of a particular property, the necessity of each and every one separately. attaching and separately selling that property. The other object is to Secure an equitable administration of the property by placing all the decree-holders in the position described, upon the same footing, and making the property ratably divisible among them instead of allowing one to exclude all the others merely because he happened to be the first who had attached and sold the property," To entitle a decree-holder to be placed in this position and to participate in the assets realised, the following conditions must be present. (a) The decree-holder claiming a share in the rateable distribution should have applied for execution of his decree to the Court which holds the assets realised. (b) Such application should have been made prior to the realisation of the assets. (c) The assets must have been realised by sale or otherwise in execution of" the decree. (d) The attaching creditors as well as the decree-holder claiming to participate in the assets should be holders of decrees for payment of money. (c) Such decrees should have been obtained against the same judgment-debtors.