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1990 DIGILAW 136 (KER)

Joseph Antony v. Varghese

1990-03-14

THOTTATHIL B.RADHAKRISHNAN

body1990
JUDGMENT 1. The decree holder in O. S. 308/85 is the revision petitioner, whereas the decree holder in O.S. 18/85 is the respondent. Both suits were for recovery of money and both were against the same defendant. Both suits were also decreed. 2. The decree holder in O.S. 18/85 got some of the movables belonging to the judgment debtor attached and got them sold is public auction on 2nd February 1988. 3. The application of the petitioner, E.A. 94/88 in E. P. 6/87 the application filed by the respondent to execute his decree in O.S. 1.8/85, seeking rateable distribution of the sale proceeds of the movables stands dismissed by the order under challenge. 4. The question arising for consideration is, Is the petitioner entitled to the rateable distribution under section 73 C.P.C. I shall now read (leaving out unnecessary parts) section 73: "73. Proceeds of execution sale to be rateably distributed among decree holders-. (1) Where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the court for the execution of decrees for the payment of money passed against the same judgment debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons:......". The essential conditions that should be satisfied for the applicability of the section are: the assets must be held by the court; the decrees must be for payment of money; the decrees must be Against the same judgment debtor; the claimant for rateable distribution must have applied for execution of his decree to the court which holds the assets and the said application shall be made before the receipt of assets by the court. An incidental question however would arise and it can be stated thus: What is meant by the word 'Assets' ? It generally means the property of whatever kind, of a person available for the inheritance of heir or for the payment of his debts or legacies. But in section 73 it must be interpreted taking into account the words "are held by the court" and also "after deducting the costs of realisation". If that be so it can only mean assets realised or converted into cash. That means the word 'assets' must be understood as referring only to money. But in section 73 it must be interpreted taking into account the words "are held by the court" and also "after deducting the costs of realisation". If that be so it can only mean assets realised or converted into cash. That means the word 'assets' must be understood as referring only to money. It can therefore be said without the fear of contradiction that the words "assets held by court" must mean 'money held by court". 5. Having understood the position thus, let us see . whether the request of the petitioner for rateable distribution can be allowed. Facts relevant in this connection are: That the application for execution of the money decree was filed before the court which held the money is beyond dispute. That the execution application was filed before the receipt of the money is beyond challenge. That the decree sought to be executed is one passed against the same judgment debtor as in the other decree is admitted. If that be the position it is too much for the opposite side to contend that the petitioner is not entitled to rateable distribution within the meaning of section 73. The court below under the circumstances ought to have allowed the prayer for rateable distribution and passed appropriate orders in that regard. C.R.P. for the reasons stated above is allowed. No costs.