SATNARAIN PRASAD CHOUDHURY Vs. MAHABIR PRASAD CHOUDHURY

JUDGEMENT

(1.) The question to be decided in this appeal is whether a certain sum of money paid in Court by a judgment-debtor to satisfy the decree of certain creditors at whose instance his property has been attached is an asset available for rateable distribution among his other creditors under Section 73, Civil P.C. This question arises upon the following undisputed facts: The appellants being judgment-debtors under several decrees for money, one of the decree-holders, namely Mahabir Choudhry, proceeded to attach some of their properties in execution of his decree. The appellants in order to pay up the decree deposited in Court on various dates several sums of money aggregating to Rs. 2472-12-0 which if there had been no other dues outstanding against them, would have fully satisfied this particular decree. All these deposits however were made after two other creditors of the appellants, who had also obtained decrees against them, had applied for rateable distribution under Section 73, Civil P.C.

(2.) The learned Munsif rateably distributed the amount deposited by the appellants among their three creditors and overruled their contention that as their payments had been ear-marked for the purpose of satisfying the dues of Mahabir Choudhury, their property had to be automatically released under O. 21, R. 55. This rule provides among other things that where the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court the attachment shall be deemed to be withdrawn. The learned Munsif held that the entire decree of Mahabir Choudhury had not been satisfied and so the attachment must continue. The appellants after unsuccessfully appealing against the decision of the Munsif to the District Judge have now preferred this second appeal.

(3.) Now, if the case had to be decided under the Civil P. C. as it stood before it was amended in 1908, there would not have been much difficulty in upholding the contention of the appellants. Indeed it appears that the precise point which has been raised in this case by the appellants was raised in Gopal Dai V/s. Chunnilal (1886) 8 All. 67 and upon the view of the law which then prevailed it was held that the amount paid by the judgment-debtor for the satisfaction of a particular decree was not available for rateable distribution to the other decree- holders. It is to be noticed, that the language of Section 295 of the old Code to which Section 73 of the new Code corresponds, was somewhat different from that of Section 73. Under the old Code the Court could rateably distribute such assets only as were "realized by sale or otherwise in execution of the decree." In Purshotamdass Tribhovandass V/s. Surrajbharthi Haribharthi (1981) 6 Bom. 588 Sir Charles Sargeant C.J. expressed the view that these words must be read as if the words "from the property of the judgment-debtor" were inserted after the word "realized." That case was followed in a number of other cases and though its correctness was doubted by Sir Lawrence Jenkins in Manilal V/s. Nanabhai (1904) 28 Bom.264, the view which prevailed in all the High Courts was that Section 295 applied only to sale proceeds of property sold in execution of a decree and money realized in one of the modes expressly prescribed by the various Secs.of the Code. In 1908 the Section being amended the words "whenever assets are realized by sale or otherwise in execution of a decree" have been replaced by the words "where assets are held by a Court."