S VENKATIKRISHNA PATTAR Vs. RKRISHNA PATTAR

JUDGEMENT

(1.) The grounds on which relief is asked for in these appeals against appellate orders would justify interference under Section 115 of the Code of Civil Procedure. It is therefore unnecessary to decide whether appeals will lie or whether the remedy in these cases should be sought in revision.

(2.) The appellants, petitioners, are two creditors, who hold decrees against the plaintiff, decree-holder in O.S. No. 27 of 1911 on the file of the Court of the Subordinate Judge of Palghat and who apparently after obtaining transfer of their decrees from the decreeing Courts, are claiming rateable distribution of money belonging to plaintiff, which is in the Subordinate Judge s Court. This money represents the balance of plaintiff s share in family property, awarded to him by that Court on partition and sold by it in order to discharge the claim of Government to a portion under Order XXXIII, Rule 10. One creditor in E.A. No. 529 of 1914 claimed rateable distribution; and, a fact which may be material when the merits are considered, the Subordinate Judge held in his order that he would be entitled to it, after the claim of Government had been satisfied. Later the plaintiff asked for a cheque for the amount standing to his credit; and, on the creditors opposing, the order we are concerned with was passed, rejecting their claims on their merits, because their decrees were against plaintiff s family property, whilst the money in Court belonged to him as a separated member. On appeal against this, the lower Appellate Court decided that, no appeal lay ; and we have to decide whether it was right, It proceeded, as plaintiff s argument has done here, on the ground that the Subordinate Judge s order, being one under Section 73 of the Code of Civil Procedure, is not appealable with reference to any special provision and is not an order under Section 47, which would be appealable as a decree.

(3.) This takes no account of the fact, which in my opinion is material, that the order obtained by an attaching creditor under Section 73 of the Code of Civil Procedure ordinarily embodies expressly or impliedly three distinct decisions that (i) his application for execution is generally valid, (2) the fund in Court is available towards satisfying his claim and (3) he is entitled to a particular proportion of it. For, though the special procedure prescribed requires that 6ne order only shall be passed, that, as was held in Radha Gobind v. Shaik Oozeer (1871) 15 W.R. 219 and Bithal Das v. Nand Kishore (1900) I.L.R. 23 All. 106 cannot deprive the judgment-debtor of his right to a decision on the first two points above referred to ; and the fact that those cases dealt with Section 295 of the former Code of Civil Procedure does not affect their value as expositions of the principle involved.