JUDGMENT
Hari Lal Agrawal, J.
1. This application under Section 115 of the Civil P. C. has been filed by the petitioner, whose claim for rateable distribution of the assets of the judgment-debtor (opposite party No. 3) has been rejected.
2. In order to appreciate the question, the relevant facts have got to be stated and they are these. The opposite first party instituted a suit against the opposite party No. 3, namely the Ranchi Central Consumers Co-operative Stores Limited, Ranchi for its eviction on account of arrears of rent and also for a decree for Rs. 60,000 on account of the arrears. The suit was decreed by the Subordinate Judge, Ranchi, and the opposite first party put the said decree in execution in Ex. Case No. 1 of 1975. In course of the said execution proceeding, the opposite first party attached two trucks of opposite party No. 3, the judgment-debtor, on 11-2-1975.
3. The opposite party No. 3 had taken a loan of Rs. 7,44,403.73 P. from the petitioner and on failure, on the part of the opposite party No. 3 to make the payment, the petitioner took steps for realisation of its dues under the provision of the B. & O. Co-operative Societies Act and accordingly an award under Section 48 of the Co-operative Societies Act was passed for a sum of rupees eight lacs, twenty thousands and odd in favour of the petitioner. The petitioner then executed the said award in the court of the District Co-operative Officer he being the Certified Officer and the case was registered as Certificate Case No. 377 of 1974. According to the petitioner’s case, it had also attached the trucks in question on 22-1-1975 and, accordingly, on the attachment of the trucks in the execution proceeding of the opposite first party, it filed a claim case under Order 21, Rule 58 of the Civil P. C. on 12-2-1975 in the execution case. The executing court allowed the claim case, but this Court in Civil Revision No. 93 of 1976 (R), filed by the opposite first party, set aside the said order.
4. Thereafter, the trucks in question were sold in court sale on 15-11-1976 for a sum of Rs. 48,000 and the auction-purchaser deposited the amount in court.
5. The petitioner then made an application in the execution case on 26-2-1977, claiming rateable distribution under Section 73 of the Civil P. C. This application was dismissed for default on 22-3-1977. The petitioner filed successively two similar applications thereafter, which also were similarly dismissed and thereafter on 4-4-1977, the fourth application was filed. This application has been dismissed by the learned Special Subordinate Judge by the impugned order on various grounds, namely, (i) that successive applications for rateable distribution were not maintainable, (ii) The assets having already been realised by the Court on 7-12-1976, the application filed by the petitioner, subsequent thereto, would not be entertained, (iii) The attachment of the trucks in question by the petitioner was illegal, inasmuch as, the details of the properties attached were not stated in the warrant of attachment, and therefore, no right flowed on account of the purported attachment of the trucks in question in favour of the petitioner.
6. The petitioner has accordingly come to this Court. We have seen that the award in favour of the petitioner was passed under Section 48 of the Cooperative Societies Act. Section 51 of this Act provides that an order passed under Section 48 shall, in addition to any other method of enforcement provided under this Act, on application be enforced as follows:
“(a) When passed by the Registrar, a liquidator or by an arbitrator or arbitrators, by any Civil Court having local jurisdiction in the same manner as a decree of such Court :
(b) When passed by the District Judge, in the same manner as a decree of the District Judge made in any suit pending before him.”
7. According to Section 52 of the Act, any sum payable by any person or by any registered society XX XX Xx
“(e) in accordance with an order, decision or award passed or made under Section 48, shall be recoverable, as a public demand in any area, in which the Bihar and Orissa Public Demands Recovery Act, 1914 (B. & O. Act 4 of 1914), is in force or as an arrear of land revenue throughout the whole of the State and the Registrar or other person authorised by him in this behalf, shall be deemed to be the person to whom such public demand is due or to whom such arrear of land revenue is payable.”
8. From the perusal of the above provisions of the Co-operative Societies Act it becomes clear that the award passed in favour of the petitioner would have been enforced by it, either as specified by Section 51 of the Act by a Civil Court, having the local jurisdiction in the matter or as provided under Section 52 of the Act,
as a public demand under the provisions of the Bihar and Orissa Public Demands Recovery Act. Had the petitioner taken recourse to the enforcement of the award through the Civil Courts, then by virtue of Clause (a) of Section 51 of the Act, it could have been enforced in the same manner as the decree of a Civil Court, but it has not done so. Question then arises as to whether the petitioner, executing the award through the processes of the Certificate Court, can be allowed to claim rateable distribution in the assets held by the Civil Courts in execution of the decree of the opposite first party.
9. The learned Subordinate Judge has rejected the claim of the petitioner, as already stated above, on three grounds. The first ground, that successive applications were not competent, does not appear to me of any substance. The applications which were dismissed merely for default did not create, in my view, any impediment in the way of a claimant to make a fresh application, until he is not late, i.e. till he is otherwise entitled to and can claim rateable distribution in terms of Section 73 of the Code. Although, no direct authority was cited, reference can be made to the Full Bench case of Sarjug Singh v. Basisth Singh, 1969 BLJR 774 : (AIR 1970 Pat 237). The question that arose in that case was as to whether a second application under Section 47 of the Civil P. C. by a judgment-debtor, an earlier application having been dismissed for default, would be maintainable and it was held that the dismissal of the earlier application did not bring about any bar on the principle of res judicata or the like. In my view the principle of the above case will apply with full force to an application under Section 73 of the Code also.
10. The second ground regarding the validity or invalidity of the attachment by the petitioner is also of no consequence, inasmuch as, if the petitioner is found otherwise entitled to get the advantage of rateable distribution, he would still get it.
11. Now remains the main and primary question for consideration, namely the third question. The learned Advocate, although conceded that his application filed in the Court, claiming rateable distribution, was subsequent to the receipt of the assets, the petitioner was still entitled to claim rateable distribution because the petitioner had already put his award in execution before the
receipt of the assets by the court, which by itself was sufficient to entitle the petitioner to participate in the distribution, of the assets in question and it was not necessary to make a separate application in the executing court.
12. There is a lurking fallacy in the argument of the learned counsel, inasmuch as, the execution proceeding of the petitioner was not pending in the court i.e. a Civil Court, but was pending before the revenue authorities. One of the essential conditions to enable the claimant to get rateable distribution is that he must have applied for execution to the court by which the assets are held. The scheme of this section, in my view, will not apply to such cases, where the assets are held by a Civil Court and another proceeding is pending before the revenue authorities. Although, I could not find any direct authority in support of this proposition, some support can be derived to this view from the case of Roshan Lal v. Mashkur Ali Khan, AIR 1921 All 142 (2). It was observed in this case that the principles of Section 73 of the Code would have no application, where the matters are pending in courts totally different and entirely independent of each other.
13. The learned single Judge of the Bind Judicial Commissioner’s Court in the case of Khudabadi Amil Co-operative Credit Bank Ltd., Hyderabad, Sind, v. Hyderabad Amil Co-operative Urban Bank Ltd., Hyderabad, Sind (AIR 1938 Sind 157), where an award was being executed under Section 59 (1) (b) of the Bombay Co-operative Societies Act (7 of 1925) as arrears of the land revenue observed that the principles of Section 73 of the Code could not be applied to such a case.
The learned counsel, however, placed reliance upon the following decisions;
(i) Dhirendra Rao Krishnarao Gunzikar v. Virbhadrappa G. Hosmani (AIR 1935 Born 176).
(ii) Lyallpur Bank Ltd. v. Ramji Das (AIR 1945 PC 60).
(iii) Sm. Rajlakshmi Dassi v. Bonamali Sen (AIR 1955 Cal 573).
(iv) Bhola Sahu v. Charneli Devi (AIR 1960 Pat 574) and,
(v) Gobardhan Das v. Harinagar Cooperative Society (1964 BLJR 387).
In none of these cases, the situation was like that as in the present case, namely, one execution case was pending in the Civil Court and another before the Revenue or any other authority. Therefore, none of the cases cited on be-
half of the petitioner are of any assistance to him.
In the Bombay case it was observed that “the true construction of Section 73 of the Code is that an application need only have been made to the Court which granted the decree before the receipt of the assets and need not be made to the Court which holds such assets.
The learned counsel had however placed strong reliance on the Privy Council case, but there also the person who was held entitled to the claim of rateable distribution was one, who although had obtained an order in his favour under Section 186 (1) of the Companies Act, 1913 had resorted to enforce that order in the District Court, which was holding the assets.
In the Calcutta case, it was decided that Section 73 of the Code does not require that an application for rateable distribution as distinct from an application for execution should be filed before the assets are received and that if more than one application for execution happen to be pending, it becomes the duty of the Court to make an order for rateable distribution.
In the Bhola Sahu’s case, this court on review of various authorities observed that ordinarily Section 73 requires that the decree-holder claiming rateable distribution should have applied for execution to the Court by which the assets were held, Section 63 of the Code recognised an exception and laid down when and to what extent this rule may be departed from.
In the last case (Gobardhan Das v. Harinagar Co-operative Society) again both the execution cases were pending in the Court of the Munsif.
14. From the above discussions, I do not feel any doubt in my mind to come to the conclusion that the petitioner, whose execution proceeding was pending in the revenue court at the relevant time and not before the court which was holding the assets in question or for that matter in any court inferior or superior to that court, the equitable principles contained in Section 73 of the Civil P. C. cannot be applied in this case. The application, therefore, has no substance and is accordingly dismissed but in the circumstances of the case, however, I shall make no order as to cost
Satyeshwar Roy, J.
I agree.