Mangilal vs Thakurse Bhai and Others

An interesting question of law as to the interpretation of Section 73, CPC has arisen in this case.

Thakurse Bhai had obtained a money decree for a sum of Rs. 28,875/- against Mohd. Kutub Ali Khan Narayandas and Ram Jus had also obtained money decrees gainst the same judgment-debtor. As the latter was a Jagirdar, sanction for the attache ment of Jagir income was necessary under Revenue Circular No. 511 of 1295 Hijri and the subsequent Circular No. 22 of 131 IF. All the three decree-holders obtained the necessary sanction and attached the income of the jagir of the judgment-debtor for the year 1355-56F. This order of attachment was issued from the Original Side of the High Court in the year 1357F, but the jagir income was sent by the Tehsil only in July 1951.

In the meanwhile the present Petitioner Mangilal obtained a decree against the same jostlement-debtor on 16-1-1950 for Rs. 34,633-8-6, submitted a petition for execution on 12-4-1949 praying for the attachment of jagir income stated in his application that Thaknrso Bhai others had attached the jagir income as above prayed for rateable distribution of the monies tached. While these cases were pending, the Order genial Side of the High Court was abolished and cases were transferred to the Court of the First Judge, City Civil Court.

Mangilal again drew the attention of that Court on 24-10-1951 and prayed for rateable distribution. Narayandas objected by his petition dated 26-12-1951 on the ground that Mangilal had not obtained his decree when orders for attachment of income for 1355-56F, were issued, that he got the sanction of the revenue department only on 12-6-1950 (sic) that he could not therefore claim rateable distribution in the income of the year 1355-56F. The Court below after hearing arguments of the parties came to the conclusion that though Mangilal''s petition for execution was filed before the amount is question was actually received in the Court he (sic) not entitled to rateable distribution as the provisions of attachment of jagir income did not permit the same and as Mangilal had not attached the income for 1355-5GF.

It is against the above-said order that (sic) revision petition has been filed. As the matter involved the interpretation of two rulings, viz. --''Qhasim-un-Nissa Begum v. Tehneyatali'' 8 DLR 150 (A) and -- ''Bombay Cycle & Motor Agenc v. Mir Mahmood Khan'' 13 DLR 51 (B), the Division Rench while expressing doubt with respect to the propositions laid down in those rulings referred the ease to the Full Bench and the same is now before us for decision.

The important fact which is clear is that Mangilal had made his application for the execution of his decree before the income of 1355-56F. was received in Court. Section 73, Code of Civil Procedure, lays down that:

(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 decree for the payment money passed against the same judgment-debtor and have not obtained sanction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons; (decree-holders)....

It is therefore clear that the revision Petitioner will be entitled to rateable distribution in view of the provisions of the section as the amount in question was received in the lower Court only after (sic) filing of the execution petition by the Petitioner (sic) none of the provisos of Section 73 were applicable (sic) the case. The objection of the Respondents (sic) as Mangilal had not actually attached the income (sic) the year 1355-56F., and had not obtained the (sic) for attachment of that amount he should (sic) be entitled to rateable distribution has no force. The amount was already attached by the Respondents and the Petitioner had made a reference to that fact in his execution petition. There was thereof necessity for a fresh attachment or for a prayer the same. The explanation to Sec 64, Code of Civil Procedure, (sic) this point very clear. It is as follows:

64 ....

Explanation: For the purposes of this section Maims enforceable under an attachment include (sic) for the rateable distribution of assets.

(sic) once attachment is issued by any of the de-(sic)-holders rateable distribution will be available (sic) other decree-holder provided the terms and conditions of Section 73 arc fulfilled. We are fortified in oar view by the ease of Mt. Deoraji Kuer Vs. Jadunandan Rai . In that case the facts were that the property of the judgment-debtor had already been attached and been ordered to be sold at the instance of one decree-holder when another decree-holder made an application (sic) form prescribed for applications for execution and prayed for a rateable distribution of the assets to be realised mentioning that the property was already under attachment and orders for sale. It was held that for the purposes of Section 73, Code of Civil Procedure, the application sufficiently complied with (sic) Section and the Applicant was entitled to rate-(sic) distribution.

In -- ''Noor Mahomed Dawood v. Bilasiram Thakursidas'' AIR 1920 Gal. 785 (D), the facts were tha "on an application by judgment-creditor for (sic) of a decree, money was paid out into Court. Two other creditors who had previously applied for execution had part of their claim.... maid and asked for rateable distribution of the (sic)"; and it was held that the money lying in curt was an asset available for rateable distribution. Thus rateable distribution under the Code is clearly permissible where one decree-holder takes (sic) execution and the other or others, though they nave applied for it, do not attach the property.

So far as the application of Section 73 is concerned, there is nothing against the Petitioner as to why he should not get rateable distribution. It is argued, however, that the rules with respect to the attachment of jagir income have a special feature and unless sanction for attachment is obtained by a decree-holder from the revenue authorities he will not be entitled to apply for rateable distribution of the income received in Court at the instance of another decree-holder. Reliance is placed upon 8 DLR 150 (A)''. The facts of the case were that the Appellant had obtained a decree for her maintenance against the Jagirdar and had attached the jagir income of certain years with the sanction of the Government. Another decree-holder having also applied for rateable distribution after staining sanction for attachment of the jagir in (sic) on a subsequent date, it was held that rate-distribution would not be available to the sub-(sic) decree-holder as the particular jagir incharge of which distribution was sought was attached the first decree-holder only and it should be aimed that the sanction was given for payment that particular decree. The intention of Government in giving sanction for the attachment, it as said in this connection, was that the particular (sic) creditor''s decree should alone be satisfied (sic) the income. Similar view was expressed in -- (sic) Deccan LR 51 (B)'', In that case reliance was mainly placed on '' 8 DLR 150 (A)'' and it was stated that no Full Bench ruling contrary to -- '' 8 DLR 150 (A)'' was cited before the Court.

It is clear from a reading of these two rulings that there is no specific reference to the revenue circulars requiring sanction. It is admitted by the learned advocates for the parties that there are two revenue circulars on this point under which sanction for attachment of jagir income is necessary. As already stated they are No. 511 of 1295H. and No. 22 of 1311F. (dated 23rd Isfandar 1311F.).

The former circular lays down that with the permission of the Madar-ul-Maham Sarkar Ali jagir income could be attached during the lifetime of the jagirdar so that the intention of the Government to show favour and patronage to the jagirdar may be kept in view. The circular merely provides the method for the attachment of the jagir income. It directs that statements containing the income of the jagir and other relevant facts be sent through the judicial secretariat to the revenue authorities who will obtain the necessary sanction from the Madar-ul-Maham. The intention of the Government in giving sanction to attachment as provided by the circular seems to be that the patronage and favour which Government show to a jagirdar by granting the jagir should not be interfered with so as to affect their status. Therefore usually not more than one half of the annual income of the jagir could be attached in any decree, reserving the other half for the maintenance of the jagir.

This is also clear from the provisions of Section 6, Clause (7), Hyderabad (Abolition of Jagirs) Regulation, 1358F., the relevant portion of which reads thus:

...not more than one half of such share or allowance shall be liable for attachment and sale in any one year of account in execution of a decree and no part thereof shall be so liable, save with the previous sanction of the Government.

In our opinion the intention underlying the grant of sanction is to give a special privilege and protection to the Jagirdars instead of giving special privilege or protection to any particular decree-holder or decree-holders. We are unable to find in these circulars any intention of the nature specified in ''8 DLR 150 (A) and 13 DLR 51 (B)'', namely an intention to give particular preference to attaching creditor against the non-attaching creditor or creditors.

Moreover looking at the matter from the view point of Section 73, it would seem clear that as soon as assets are received in Court they will be available for rateable distribution among the decree-holders who had already applied for execution. The exceptions to this rule which could be taken notice of are only those that are laid down in the section itself, viz., that if assets are received in Court for the satisfaction of any mortgage amount or charge, then the charge or mortgage amount in question will be given preference. No such question arises in this case. It cannot be said that attaching the income of the years 1355-56F. with the sanction of the Government created a charge on that amount in, favour of the attaching creditor. A charge could only be created by the act of parties and not by the revenue authorities who accord a sanction for (sic) attachment. The judgment-debtor is not a party whose assent would be necessary while according such a section nor can such an attachment be regarded as (sic) of money for payment of a particular decree.

The learned advocate for the Respondents relied upon ''Abdul Kareein v. Kishorelal'' 9 DLR 254 (E). In our opinion that ruling has no bearing on this case, The salary there was not liable to attachment but it was through some mistake or oversight attached and brought into Court and when rateable distribution was asked for by the other creditor, it was held that no rateable distribution could be granted as u/s 372, Hyderabad Code of Civil Procedure, corresponding to Section 73 of the Indian Code of Civil Procedure, a decree-holder could ask for rateable distribution only of such assets as he could himself have attached in satisfaction of his decree. Such is not the ease of the decree-holder before us. He could have attached with the sanction of the Government the income for 1355-56F.

We are therefore of the opinion that ''8 DLR 150 (A)'' and ''13 DLR 51 (B)'' do not lay down correct law and must be overruled.

We hold that the revision Petitioner is entitled to rateable distribution. No question of refund thereof arises. We allow the petition and set aside the order of the lower Court but in view of the circumstances of the case make no order as to costs.