P L D 1963 Azad J & K 55 (PLP)

(a) that Sh. Inamullah's execution application which was pending before the District Judge, Mirpur was never trans ferred by that Court to this Court to enable the decree holder to receive rateable distribution of the assets held by this Court ; (b) that no execution application by Sh. Inamullah for the satisfaction of his decree had been made in this Court (raised verbally during the arguments) ; and (c) that no attachment of the timber belonging to the judgment‑debtor, which had been attached by this Court on the prayer of the decree‑holder Muhammad Ismail Khan had been got attached by Sh. Inamullah in his decree to enable him to claim rateable distribution under section 63 read with section 73, C. P. C. The learned counsel for the respondent, Sh. Inamullah had hardly been able to meet these grounds. He only relied on the warrant of the Court of the District Judge dated 1‑4‑61 whereby this Court was requested to include the decree‑holder Sh. Inamullah m the rateable distribution of the assets of the judgment‑debtor received in consequence of the execution appli cation of "Khan Muhammad Ismail Khan v. Akbar Yousaf Masti Khan." Perusal of the file shows that no execution application of the decree‑holder, Sh. Inamullah, was ever transferred to this Court by the Court of the District Judge, Mirpur, for execution. Perusal of the file of the execution application of Sh. Inamullah pending in the Court of the District Judge, Mirpur clearly shows that no prayer for attachment of the timber attached in the execution application of "Khan Muhammad Ismail Khan v. Akbar Yousaf Masti Khan" was ever made by the decree-holder, Sh. Inamullah which, if made, would have entitled him to a rateable distribution in view of the provisions of section 63, C. P. C. alongwith Khan Muhammad Ismail Khan, the decree-holder, in the assets received by the Court as a result of the sale of the timber attached in the execution application of Khan Muhammad Ismail Khan. All that was prayed in the execution application of Sh. Inamullah Khan before the District Judge was "by sale of attached timber". These words are to be found in column No. 10 of the execution application. The following words appear further added in this column "this timber has been attached by the High Court in the case "Khan Muhammad Ismail Khan v. Akbar Yousaf Masti Khan." The interim order of the Court of the Judge dated 28‑3‑61, after the presentation of the execution application in that Court runs thus :‑ "Application, after the report being appended to it by the Serishta has been put up. It should be registered. Decree-holder present. Warrants of attachment of the property of the judgment‑debtor in accordance with the prayer of the decree‑holder be issued on payment of Talbana and the file should be put up on 20‑4‑61, pending the receipt of com pliance." I searched the file of the District Judge to find out if any warrant of attachment was issued but there is none on the file. The warrant dated 1‑4‑61 is the only warrant issued by the executing Court, because in this warrant it is mentioned that the next date fixed is 20‑4‑61, after which no warrant was ever issued. In this warrant there is no order of attachment of the timber of the judgment‑debtor already attached by this Court in the execution application of Khan Muhammad Ismail Khan. Thus it can be said without fear of contradiction that the timber attached in the execution application of Khan Muhammad Ismail Khan was never attached by the District Judge in the execution application of Sh. Inamullah. Now, it is to be seen, that when no execution application of Sh. Inamullah was ever transferred to this Court by the District Judge nor any execution application was made to this Court direct by Sh. Inamullah with a prayer for rateable distri bution and nor the timber attached by Khan Muhammad Ismail Khan, decree‑holder, was got attached by Sh. Inamullah, in his execution application, is be entitled to rateable distribution? I shall presently discuss the law and the case‑law but I may point out here that the recording of the fact that the execution application of Sh. Inamullah, pending in the Court of the District Judge, Mirpur, was forwarded to this Court for rateable distribution on 1‑4‑61, in the judgment under review, is wrong and a mistake patent on the face of the record and this Court is, therefore, competent to review its judgment. In view of the provisions of sections 63 and 73 of the C. P. C. and the case law on the point, Sh. Inamullah is not entitled to any rateable distribution. Section 63, C. P. C. contemplates the cases where attachment of the same property has been made by different Courts at the instance of the different decree‑holders of the common judgment -debtor and provides for the distribution among them of the proceeds of the attached property by one of the Courts only whereas section 73, C. P. C. deals with cases where assets are held by a Court and more persons than one have before the receipt of such assets made applications to the Court for the execution of decrees for the payment of money passed against the same judgment‑debtor. The scope of both these sections is the fair distribution of the proceeds of sale among the judgment -creditors of the common judgment‑debtor. We have to see whether the case of Sh. Inamullah falls under any of these sections. As already pointed out the timber the property of the common judgment‑debtor of Sh. Inamullah and Khan Muhammad Ismail Khan decree‑holders was never attached in the execution application of Sh. Inamullah pending in the Court of the District Judge, Mirpur, and this being the case section 63, C. P. C. would not cover his case, and since his execution application was never transferred to this Court before the receipt of assets by this Court nor was any execution application made by him in this Court with a prayer for rateable distribution before the receipt of such assets, section 73, C. P. C. would not govern his case. Thus he can neither avail of section 63 nor 73 of the C. P. C. and in the circumstances it was wrong on the part of this Court to hold him entitled to rateable distribution in the judgment under review. In A I R 1936, Calcutta 723 his Lordship of the Calcutta High Court has dealt at length on the scope of sections 63 and 73, C. P. C. and, in my opinion, has given a very correct exposition of law on the point. Other High Courts too have held a similar view and in this con nection A I R 1938 Lah. 754 ; A I R 1939 All. 159 ; A I R 1941 Oudh 277 ; A I R 1936 Mad. 797 and A I R 1938 Sind 175 may be referred to. I, therefore, hold that Sh. Inamullah is not entitled to rateable distribution in the assets held by this Court and that if he was held entitled to rateable distribution it was on account of misapprehension of facts. As already stated Sh. Inamullah's execution application was never forwarded to this Court by the District Judge for rateable distribution. I, there fore, accept the review petition with costs and set aside my order under review to the extent whereby Sh. Inamullah was held entitled to rateable distribution. In an application filed in this Court on 14th March 1963, Kh. Abdul Karim, decree‑holder has pointed out that under section 73 of the C. P. C. the assets of the judgment‑debtor received in the Court could be rateably distributed only after deducting the cost of realization of the same and as this was not done in spite of the mandatory pro vision of law the mistake should now be corrected. I do not dispute this contention by Kh. Abdul Karim, decree‑holder and I remember that I had given clear orders to the clerk concerned and the parties to work out rateable distribution after deducting costs of realization of assets. In this connection I may repro duce the relevant portion of my order dated 2‑1‑1963 which runs thus :‑ "This asset as worked out comes to Rs. 84,632 inclusive of costs of realization amounting to Rs. 7,

030. This amount may be paid to him (decree‑holder)." At the last hearing at Mirpur I particularly questioned Abdur Rashid, the clerk who handled this file, and he informed me that the rateable distribution had been worked out by him with the help of the parties without deducting the cost of realization. The fact whether the rateable distribution in this case had been worked out after deducting the costs of realization or not can be checked even now and this should be done again in the presence of the parties and their signatures obtained so that they may not again come forward with the plea that the rateable distri bution had been worked out wrongly. Even otherwise the rateable distribution shall have to be worked out afresh now that I have held Sh. Inamullah as not entitled to rateable distribution. Sh. Inamullah shall forthwith return the amount which he has received from this Court as he is no more entitled to retain it. K. B. A. Order accordingly.