Decided on July 28,1960

SETH HIRALAL Respondents

Referred Judgements :-


Cited Judgements :-



JAGAT NARAIN, J. - (1.)THIS is a revision application by one Ramzan Khan against an order of the Distt. Judge Jaipur City directing that the assets obtained by the sale of twelve shops in execution of his decree be rateably distributed amongst him and Hiralal, Pyaralal, Manakchand and Motilal respondents Nos. 1 to 4.
(2.)THESE twelve shops originally belonged to one Khawas Balabux who died before 1944 leaving a son Lekhraj. Khawas Balabux and Lekhraj constituted a joint Hindu family and the twelve shops which were attached by Ramzan Khan and four of the respondents in their decrees are ancestral properties. It is not disputed that these twelve shops are equally liable to attachment and sale in execution of all these decrees. None of the decree-holders is entitled to get any property over the other decree-holders.
Ramzan Khan obtained a decree against Lekh Raj in respect of a liability of his father Bala Bux after the death of Bala Bux. Lekh Raj however died in 1951 leaving a widow Smt. Suraj Bai and a minor son Mahesh Kumar. Ramzan Khan filed his execution application against them.

In the other decrees also execution is proceeding against Smt. Suraj Bai. The liabilities on the basis of which these decrees were passed were however incurred by Lekh Raj. Some decrees were passed against Lekh Raj and some were passed against his legal representative Smt. Suraj Bai. The shops were attached in the above decrees on the dates given below: - (1) Heera Lal's decree . . . . . . . . . . . . . . . 22. 12. 48 (2) Pyaralal's 3 decrees . . . . . . . . . . . . . . . 11. 10. 50 (3) Ramzan Khan's decrees . . . . . . . . . . . . 10. 2. 54 (4) Moti Lal's decree . . . . . . . . . . . . 13. 7. 54 (5) Manak Chand's decree . . . . . . . . . . . . . . . 22. 10. 54 Ramzan Khan's decree was being executed in the court of Civil Judge Jaipur City. The other decrees were being executed in the court of the Distt. Judge Jaipur City. Although execution proceedings in all these decrees were pending simultaneously in the two courts the property was first put to sale in Ramzan Khan's decree and was sold for Rs. 16,000/ -. On an application made by the other decree-holders under sec. 73 C. P. C. the assets obtained by the sale of the attached property were transferred to the court of Distt. Judge Jaipur City for distribution amongst the various decree-holders who may be entitled to get them in execution of their decrees.

Before the learned Distt. Judge Ramzan Khan claimed priority over the other decree-holders on the ground that he was the first to get the property sold in execution of his decree, contending that the other decree-holders were not entitled to rateable distribution under sec. 73 their decrees had been passed on the basis of the liability of a different person. The learned Dist. Judge overruled this contention and ordered rateable distribution. Against that order the present revision application has been filed.

On behalf of Ramzan Khan applicant reliance was placed on Jamaiyataram Vs. Umiyashankar (1 ). On behalf of the other decree-holders the decisions in Hemendra Nath Vs. E. D. Commercial Bank (2) and Ramakrishnan Vs. Viswanathan (3) were relied upon.

There is conflict of opinion as to the interpretation of the words "passed against the same judgment-debtor" occurring in sec. 73. Judgment-debtor' is defined in sec. 2 (10) as meaning any person against whom a decree has been passed. If a strict literal interpretation was to be put upon the expression it is clear that before sec. 73 could apply there must be complete identity of the judgment-debtor in all the decrees. Such an interpretation would however defeat the very object of the Legislature in enacting this provision.

Under sec. 270 and 271 of the Code of 1859, the creditor who first attached the property had a statutory priority to have his claim satisfied in full out of the sale proceeds to the exclusion of other creditors. This superior position assigned to the first attaching creditor naturally led to scrambles and malpractices among attaching creditors and with a view to put an end to the same, the section was changed by the Code of 1877 so as to place all decree holders on an equal footing regardless of any priority in attachment or of the application for rateable distribution. The object of the section is twofold - (1) to prevent unnecessary multiplity of execution proceedings, so obviate in a case where there are many decree-holders, each competent to execute his decree by attachment and sale of a particular property, the necessity of each and every one separately attaching and separately selling property ; (2) to secure an equitable administration of the property by placing all the decree-holders on the same footing and making the property rateably divisible among them. The rule enunciated in this section is only a rule of procedure. It does not alter or limit the substantive rights of rival decree-holders.

All the High Courts now agree that it is necessary to give to sec. 73a liberal interpretation consistently with the object which the Legislature intended to carry out by enacting the section. But the limits to which they have extended the meaning of the expression 'judgment-debtor' as occurring in sec. 73, vary. Is my opinion the intention of the Legislature can only be fully carried out if sec. 73 is made applicable to all cases in which the assets have been realised by the sale of a particular property which is liable to attachment and sale in more than one decree. It was observed by the Full Bench in Dundappa Vs. Annaji (4) - "although the Legislature has used the expreession "the same judgment-debtor", it is clear that what is emphasised in sec. is more what is realised in execution than the identity of the judgment-debtor. What is to be distributed rateably are the assets, and if the assets belong to the same person, then it is difficult to see why the principle of rateable distribution should not be open to the judgment-creditor. Did the Legislature really intend that although the assets realised were of the same debtor, merely because the judgment-debtors on the record were different the principle of rateable distribution should not apply. It is difficult to come to that conclusion unless the language is so plain that we would feel that we were doing violence to it by placing this more liberal interpretation upon the expression "the same judgment-debtor". In our opinion the expression "the same judgment-debtor" must be construed in its own context, and, as I said before, when the context deals with the realisation of the assets and when judgmentcreditors are more concerned with the assets they realise for the purposes of satisfying the decree than with the identity of the judgment-debtor, it is clear that the Legislature did not intend that the expression "the same judgment-debtor should be construed in a strictly technical sense,. . . . . . . . . . . . . . . It seems to us, again speaking with very great respect, that that High Court (Calcutta) having gone as far as 'gonesh Das Bagria's case' (5), seemed to have paused and refused to, what they considered, extend further the meaning of "the same judgment-debtor" used in sec. 73. But in our opinion if it is possible for the Court to take the view that was taken in Gonesh Das Bagria Vs. Shiva Lakshman Bhakat (5) we do not see why it is not possible to take the view which was taken in Rama Krishan Chettiar Vs. Vishwanathan Chettiar (3), Hotilal Vs. Chatura Prasad (6) and Shiv Charan Das Vs. Ram Saran Das (7 ). Sec. 73 will therefore be applicable in cases in which the same property is liable to attachment and sale in more than one decrees whether against the same estate or different estates and the assets in which rateable distribution is claimed have been realised by the sale of it. If it were to be held that sec. 73 is not applicable to the distribution of such assets then the consequence would be that there would be scramble among the decree-holders for getting the property sold first in execution of their decrees. Each decree-holder will try to prosecute his execution proceeding separately. There will be multiplicity of proceedings which the Legislature intended to avoid This scramble would give rise to malpractices which also the Legislature intended to avoid.

Jamiyatram's case is distinguishable from the present case. There one decree was in respect of the liabilities of father and another was in respect of the liabilities of the son as in this case. But there is nothing in the report to show that the assets in which rateable distribution was claimed were obtained by the sale of property which was liable to attachment and sale in both the decrees. On the other hand the following observations made in the judgment go to show that property which was sold was not liable to attachment and sale in both the decrees: - "it seems to me that the grossest injustice and absurdity may follow from holding that decrees against the same person must always be regarded as decrees against the same judgmentdebtor for the purposes of sec. 73. One may have creditors of estate of A, which is solvent being compelled to share the assets of that estate with the creditors of estate B, which is insolvent and possesses no assets, merely because there is a common trustee of the two estates. ''

In a case like the present one where the assets are obtained by the sale of property which is liable to attachment and sale in the decrees of creditors of estate A and those of estate B there will be no injustice if the assets are rateably distributed between the creditors of the two estates. On the contrary in such a case it will be more equitable to distribute the assets rateably among the attaching creditors than to allow she creditor, who has been able to get the property put to sale in execution of his decree first, to take away the entire assets. In the present case Ramzan Khan obtained a decree in respect of the liability of Balabux the father. The other creditors obtained decrees in respect of the liabilities of Lekhraj the son. All the creditors are entitled to attach and sell the twelve shops which have been sold in Ramzan Khan's decree. Now supposing, instead of the creditor of the father, one of the creditor or the son had succeeded in getting the property sold in execution of his decree first then if the assets are not rateably distributed the creditor of the son would be able to appropriate the entire assets for the satisfaction of his decree to the complete exclusion of the creditor of the father. This will be highly inequitable.

The observations of Tekchand J. in Shivcharan Das. Vs. Ramsaran Das (7) to the effect.- "the holder of the first decree applied for rateable distribution but the application was disallowed as the two decrees were not against the same judgment-debtor". The case really fell in class (III) above and not class (II) with which we are concerned and the conclusion, if I may say so with respect, is correct as the two decrees although they were passed against the same person but were passed with regard to debts of two entirely different persons. " and the observation of Gajendragadkar J. in Mulchand vs. Shiddappa (8) to the effect - before sec. 73 can be applied, it must also be shown that the said identical judgmentdebtor occupies the same legal character in all the decrees. " envisage a situation in which rateable distribution is sought merely on the basis of identity of judgment-debtors. They are not intended to apply to a case like the present one where the property from the sale of which assets have been obtained is liable to attachment and sale in decrees against both the estates. As pointed out in Dundappa Vs. Annaji (4) under sec. 73 the stress is on the identity of property which is liable to attachment and sale in more than one decree.

In the present case the assets have been realised by the sale of twelve shops which are liable to attachment and sale in. all the decrees obtained either against the estate of Balabux the father or Lekhraj the son. Sec. 73 is therefore applicable to the case as was held by the learned District Judge.

(3.)THE revision application is accordingly dismissed with costs. .

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