Kesarimal (deceased through L.R. Tarachand) and others vs Balaram Shriram(deceased through L.R. Jagannath)and others

V.R. Newaskar, J.

These two revision petitions arise out of two of the decree-holders in Execution Cases No. 9/1949 and 24/1949 for ratable distribution of the assets realized in Execution Case No. 6/1949 of the Court of the Additional District Judge, Ujjain.

The only ground on which the Court below refused ratable distribution to the decree-holder in Execution Case No. 9 /1949 is that the judgment-debtors in the two execution cases are not identical with those in Execution Case No. 6/1949.

The Court also refused retable distribution in favour of the decree-holders in Execution Case No. 24/1949 on the ground similar to that pertaining to Execution Case No. 9/1949, namely, that the judgment-debtors in Execution Cases Nos. 24/1951 and 6/1949 are not identical and secondly on the ground that no counsel appeared before it to press the petition.

Now judgment-debtors in Execution Case No. 6/1949 are nine in number. They are four sons of Karamchand, namely, Rupchand, Hastimal, Champalal and Mishrilal, two sons of Champalal, two sons of Hastimal and one son of Rupchand i. e. four brothers and sons of three of them.

And judgment-debtors in Execution Case No. 9 /1949 are Chandrakuvarbai Bherulal and the four sons of Karamchand, namely, Rupchand, Hastimal, Champalal and Mishrilal. It is said that Chandrakunvarbai represented Fulibai who was the legal representative of the fifth brother Kasturchand.

On looking into the certified copies of the decrees pertaining to Execution Cases Nos. 6 and 9 of 1949 it seems that there is no substantial difference between the judgment-debtors in the two cases. It is clear from these decrees that the persons proceeded against appear to be members of the joint Hindu family of the five brothers. The fact that in Execution Case No. 6/1949 heirs of Kasturchand, namely, Fulibai or Chandrakunvarbai are not brought on record may not make a substantial difference if the property sold is the property of the family. Section 73 of the CPC reads as follows:

(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 realization, shall be ratably distributed among all such persons:

Provided as follows:

(a) Where any property is sold subject to a mortgage or charge, the mortgagee or encumbrance shall not be entitled to share in any surplus arising from such sale;

(b) Where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or encumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or encumbrancer the same interest in the proceeds of the sale as he had in the property sold;

(c) Where any immovable property is sold in execution of a decree ordering its sale for the discharge of an encumbrance thereon, the proceeds of sale shall be applied-

first, in defraying the expenses of the sale; secondly, in discharging the amount due under the decree; thirdly, in discharging the interest and principal monies due on subsequent encumbrances (if any); and fourthly, ratably among the holders of decrees for the payment of money against the judgment-debtors, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.

(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

(3) Nothing in this section affects any right of the Government.

It is clear from the use of the words ''passed against the same judgment-debtors'' in this section that the identity of judgment-debtors is to be seen with reference to the decrees in the various cases and not the various applications for execution on the basis of such decrees. Therefore if the decrees passed in Execution Cases Nos. 6 and 9 of 1949 are against the same judgment-debtors then it is not material who are brought in to represent them as their legal representatives. This is clear from the Full Bench decision of the Allahabad High Court in Hoti Lal Vs. Chatura Prasad and Others, . It further seems clear that the words ''the same judgment-debtors do not imply that all the judgment-debtors need not be identical''. Even if one or more of the judgment-debtors are common the section would apply, vide Mulchand Kesaji Vs. Shiddappa Gurubasappa, . Thirdly where the persons proceeded against in the suits and the execution proceedings are the members of the joint Hindu family and certain members fully represent the family in the litigation then in spite of difference in the number of members in cases will not make the provision u/s 73 inapplicable, vide Subramaniam v. Annamalai AIR 1940 Mad. 525 and Mulchand v. Shiddappa (supra).

The Court below does not appear to have paid attention to these principles and proceeded to reject the claims of this Petitioner in Civil Revision No. 364 of 1960 merely on the ground that the judgment-debtors in the two cases, namely, Civil Execution Case No. 9/1949 and No. 6/1949 are not identical. Such hasty and superficial disposal of the case amounts to refusal to exercise jurisdiction vested in it by law or at any rate it amounts to acting illegally and with material irregularity in the exercise of jurisdiction.

As regards Execution Case No. 24 of 1951 also the above mentioned principles are not kept in view. The Court ought to have seen from which of the judgment-debtors the assets are realized and then should have proceeded to consider whether those judgment-debtors are the judgment-debtors in the execution with reference to which claim for ratable distribution is made. If they are common the claim would be well founded. The petition for execution was not dismissed for default in this case. It is said that no counsel appeared to argue the case. The Court however is not relieved of its duty to decide the case according to law merely on the ground that the counsel did not appear. In this case too as the aforesaid principles are not taken into account and the case was not dealt with accordingly, the action on the part of the lower Court either amounts to refusal to exercise jurisdiction or it amounts to acting illegally or with material irregularity in the exercise of jurisdiction.

Appropriate principle on the basis of which claim for ratable distribution can be allowed has not been clearly understood.

Both the petitions are therefore allowed and the cases are sent back to the lower Court for consideration and disposal in accordance with law in light of the observations made above. The Petitioners are entitled to their costs of these petitions from the decree-holders in Execution Case No. 6 of 1949. Costs in the Court below will abide the final result.