K ABDUL SALAM SAHIB TRADING UNDER THE NAME AND STYLE OF K SHEIKH MEERA SAHEB AND CO Vs. BATCHU VEERABHADRA RAJU

JUDGEMENT

(1.) THIS case comes before this Bench in the matter of the judgment of this Court in a second appeal. There was a disagreement in the judgment of this Court in S.A. No. 1328 of 1924 between two learned Judges of this Court, Mr. Justice Devadoss and Mr. Justice Jackson. The appellant's appeal stood dismissed on this difference of opinion and he has put in this Letters Patent Appeal.

(2.) THE sole question for decision is whether Ex. C, which was an application for attachment of an amount in the trial Court put in by the plaintiff, the appellant here, is a sufficient application to that Court for the execution of a decree within the meaning of Section 73 of the Civil P. C.. THE sum which he attached was the proceeds of a sale under an attachment before judgment by the defendant to his suit. THE plaintiff himself obtained his decree on 16 June, 1922, and on the 30 June following he put in the application, Ex. C, asking for an order of attachment and an order was passed attaching the fund which had been paid into Court to the credit of the defendant's suit. THEre were admittedly certain defects in the application, Ex. C, a lack of certain particulars which are required under Order 21, Rule 11 for a proper formal execution application under that rule. But what we are concerned with is not so much whether that application conforms to the provisions of Order 21, Rule 11 but whether it is for practical purposes and for the purpose of Section 73 a sufficient application for the execution of a decree. Mr. Justice Devadoss held in favour of the appellant that the application was sufficient for that purpose. Mr. Justice Jackson, impressed by the want of particulars required by Order 21, Rule 11, has held that the application could not be treated as a proper application for the execution of a decree for the purpose even of Section 73. Now the executing Court itself, although it treated Ex. C as an interlocutory application in the suit, did as a matter of fact issue an attachment by its order upon the petition. That is, it did in fact treat it as an effective execution application for the execution of the plaintiff's decree. It did not consider the lack of particulars as calling for any amendment, alteration or correction, and did not return the petition for supply of those particulars; it admitted the petition, accepted it and issued attachment. On these facts we think that the more correct view to take is the view taken by Mr. Justice Devadoss that the petition, although defective in form is in substance sufficient for the purpose of an application under Section 73. THE purpose of that section obviously is that there should be an equitable distribution of assets between those creditors who have been diligent enough to obtain decrees and put in execution applications before the time such assets have been received, and we must in this case look rather to the substance than to the form of the application in order to administer the equity which the law provides. Agreeing therefore with the view of Mr. Justice Devadoss, we allow this appeal. THE decree of the Lower Court is set aside and the District Munsif will pass a decree in conformity with the provisions of Section 73. THE plaintiff will receive proportionate costs before the Second Appellate Bench and in the Lower Courts. In this Letters Patent Appeal as the other side has not appeared before us the plaintiff will bear his own costs.