MT DEORAJI KUER Vs. JADUNANDAN RAI

JUDGEMENT

(1.) This is an application by a rival decree-holder from an order granting rateable distribution of the assets realized by the Court. The applicant had obtained a money decree against the judgment-debtor and his property had been attached by him and put up for sale at auction. The respondent decree-holder, who also had a money decree against the same judgment-debtor from another Court, got the decree transferred to the same Court which was executing the applicant's decree. After the execution of the decree had been transferred, he filed an application on 15 March 1929, describing it as an application for execution. It was in fact on a printed tabular form prescribed for applications for execution under Order 21, Rule 11. All the particulars required for an application in execution were filled in from Cols. 1 to 9. In the last Col. 10 which has a heading "the mode in which the assistance of the Court is required" he stated that the only property which the judgment-debtor had had already been attached in execution of the other decree and was to be put up for sale on the 20 March following. He therefore prayed that the decree-holder should be paid his decretal amount by rateable distribution of the amount realized at the auction sale. He gave particulars of his own decree and the amount due from the judgment-debtor. It is not disputed that the office of the Court below treated this application as one for execution and the Court actually ordered it to be registered as such. After the assets were realized, the Court, in spite of the objection by the applicant to the contrary, ordered a rateable distribution.

(2.) The applicant has now come up in revision to this Court and it is urged on her behalf that the order of the Court below was either without jurisdiction or illegal because there had been no proper application for the execution of the respondent's decree before the assets were realized. This argument is based on the circumstance that in the prayer sought for there was no request either for the attachment of the property and sale or for the arrest of the judgment-debtor. The contention is that the only modes of execution of a money decree are attachment and sale or sale without attachment and arrest, and that unless one of these modes is specified there is no proper application for execution in accordance with law. Strong reliance is placed on a Nagpur case, Balaji V/s. Gopal .

(3.) Under Order 21, Rule 54, the way in Which immovable property can be attached is by making an order prohibiting the judgment-debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge. The order has to be proclaimed in the way prescribed in Sub-section (2) of that rule. It cannot be disputed that in the present case this procedure had already been adopted at the instance of the applicant himself. The property was already in custodia legis and there seems to us to have been no absolute necessity for a fresh attachment of the same property, that is to say, a fresh order issued to the judgment-debtor prohibiting him from transferring or charging it.