KUSUM KUMARI DEVI Vs. GAYANATH PRAMANIK

JUDGEMENT

(1.) This Rule is on behalf of one of the creditors of opposite party No. 1. The other creditors of the said opposite party No. 1 are opposite parties Nos. 2, 3 and 4. The opposite party No. 2 is however a secured creditor and the rule is not against her. The question raised in this rule is a question relating to rateable distribution not under the provisions of Section 73, Civil P. C., but on general principles of the surplus sale proceeds of a holding, which belonged to opposite party No. 1, but has been sold in execution of a rent decree obtained by the landlord against him. The holding was sold by the Munsif, 1 Court, Manikganj, on 24 September 1934, for a sum of Rs. 350. The whole of the purchase money was in Court on or before 14 November 1934. The claim under the rent decree was only Rs. 48 odd and after the satisfaction of that decree there remained a balance of Rs. 302 odd. Opposite party No. 2 had obtained a mortgage decree against the opposite party No. 1 for Rs. 202-13-2, the subject of the mortgage being the holding which was sold on 24 September 1934. She laid a claim to the surplus sale-proceeds, and by order No. 15 the learned Munsif, First Court, Manikganj has allowed opposite party No. 2 to withdraw the sum of Rs. 202 odd out of the surplus sale- proceeds. That order has not been challenged in this rule and cannot be challenged. After the claim of opposite party No. 2 to the surplus saleproceeds had been allowed by order No. 15, a sum of about Rs. 100 was still left and the scramble to get this surplus was between the petitioner, opposite party No. 3 and the opposite party No. 4. On 19 November 1934 the opposite party No. 3 applied to attach this surplus saleproceeds. The application was made in the 1 Munsif's Court at Manikganj. The claim under his decree is Rs. 52-12-6.

(2.) On the same day opposite party No. 4 who had a decree against opposite party No. 1 for the sum of Rs. 43 odd had the surplus sale-proceeds attached through the Munsif, 2nd Court, Manikganj. On 24 November 1934 the petitioner who had obtained a decree against opposite party No. 1 for a large amount caused the attachment of the surplus sale-proceeds to be effected through the Munsif, 2nd Court, Manikganj. From the dates which I have mentioned above, the petitioner and the opposite party No. 4 did not make any application for execution to the Court which held the money. Besides, all the attachments were issued after the date of the receipt of the assets by the first Court of the Munsif at Manikganj. Opposite party No. 3 however made the application for execution there. But his application was also after the date of receipt of the assets. On these facts, there cannot be doubt that none of the parties, namely petitioner and opposite parties Nos. 3 and 4 are entitled to claim rateable distribution on the basis of Section 73, Civil P. C. The position, therefore, is this that the surplus sale- proceeds which amounted to about Rs. 100 was in the custody of 1 Munsif of Manikganj. The attachments had been made at the instance of three sets of creditors. These attachments did not create any lien in favour of any of them and therefore their rights cannot be detained by priority of attachment. Having regard to this fact according to the principle laid down in the case of Thakurdas Motilal V/s. Joseph Iskender 1917 Cal 13, I hold that each of these three sets of creditors namely petitioner and opposite parties Nos. 3 and 4, must get the surplus sale proceeds divided amongst them pro rata, that is in proportion to their decrees.

(3.) The proper from of the order for the Munsif, 1 Court, Manikganj, to pass would have been to retain the portion which fell to the share of opposite party No. 3 pro rata for payment to him, and to send the Munsif, 2nd Court, Manikganj, the amounts which would fall due to the share of the petitioner and the opposite party No. 4 pro rata, i.e., according to the principle which I have indicated above. But having regard to the fact that the amount involved is very small, I do not make this further order because it would involve the parties in more costs at the time of the withdrawal of the amount from the Court of the 2nd Munsif, and therefore with the consent of opposite party No. 4 and the petitioner I direct that the money which would fall to the respective shares of the opposite party No. 4 and the petitioner should be paid by the Munsif, 1 Court, Manikganj. The opposite party No. 3 would of course get the money that fall to his share from the 1 Munsif's Court The rule is accordingly made absolute The order of the learned Munsif, No. 16 is modified in the way indicated above There will be no order for costs in favour of or against any of the parties.