KARPAGA NIDHI, LTD BY SECRETARY, RANGIA GOUNDAR Vs. VANIA VILASA NIDHI, LTD, BY SECRETARY, NAMMALWAR CHETTIAR

JUDGEMENT

(1.) I think this petition ought to be allowed. The District Munsif in the Court below was apparently under the impression that he had no jurisdiction to order payment out on the application of the petitioner for the reason that his application for rateable distribution was presented subsequent to the realization of the assets. The learned District Munsif obviously overlooked the provisions in Section 73, Civil Procedure Code, that every person that had applied to the Court previous to the realization of assets for execution of the decree obtained by him was entitled to come in under that section and have rateable distribution. The learned vakil for the respondent has drawn my attention to two decisions of this Court. The first is the one reported in Somasundaram Chetti V/s. Tirunarayana Pillai (1914) MWN 738. In that this Court refused to interfere because it was of opinion that a regular suit was in the circumstances of that case the more efficacious remedy having regard to the fact that the rights of parties not before this Court might conceivably be affected by any order that may be made behind their backs. There is no such difficulty here because in the present case when the petition was filed no payments had been ordered to be made, and I do not now propose to make the order finally. The other case cited by the learned vakil for the respondent is that reported in Muthiah Chetty V/s. Alagappa Chetty 47 IC 296. There are certain observations in the course of the judgment in that decision to the effect that if an enquiry should be found necessary for determining the rights of particular judgment-debtors in the fund applied for to be distributed the appropriate procedure would be not under Section 73 but in a regular suit. No such enquiry is or could at all be necessary in this case, because both the judgment-debtors in the suit in which the property was sold were judgment-debtors also in the suit in which the decree was obtained for which rateable distribution is now applied for. Both of them being liable for the entire decree of the petitioner no enquiry into any share or interest of particular judgment-debtors would be necessary. The Lower Court having dismissed the petitioner's application on the misconception that an application must have been made by him before distribution of assets the order should be set aside, and I hereby set aside the order and remand the application to the Lower Court for being heard if necessary after notice to all the parties concerned. The respondent will pay the petitioner's costs of this Civil Revision Petition.