P L D 1973 Lahore 682 (PLP)

Raja M. Sabir for Respondent No.

2. Date of hearing: 7th July 1972. By this revision petition the petitioners have challenged an order dated 15th May 1968, passed by Mr. Muhammad Asadullah, Senior Civil Judge, Sargodha, rateably distributing a sum of rupees eighty thousand and odd among different decree‑holders of Wali Muhammad respondent including the petitioners and ‑respondent‑bank.

2. The facts relevant to the present petition are that the petitioners and Wali Muhammad respondent referred their disputes to arbitration without the intervention of the Court and the arbitrator gave an award on 2nd October 1961, holding that Wall Muhammad was liable to pay a sum of Rs. 1,12,916.15 to the petitioners and directed that in discharge of this debt a sum of Rs. 91,638.94, which was recoverable by Wali Mohammad from the Rehabilitation Department might be rateably distributed between the petitioners and the balance amounting to Rs. 21,277.21 was to be paid by Wall Muhammad in two equal Instalments to the petitioners on 1st of December 1961 and 1st of February 1972. An application under section 14 of the Arbitration Act was submitted by the petitioners before the civil Court which was objected to by Wall Muhammad respondent, but his objections did not find favour with the Court with the result that the award was made a rule of the Court and a decree was passed fn accordance therewith on 7th February 1963. An appeal registered as F. A. O. No. 25 of 1963 filed by Wall Mohammad Is pending before this Court.

3. The petitioners submitted an execution application on 20th February 1963, but it was consigned to record room on 2nd December 1966. Another execution application was then filed on 3rd December 1966, praying inter alia for payment of Rs. 91,638.00 which was due to Wali Muhammad from the Rehabilitation Department. It may be stated at this stage that on 3rd October 1961, a temporary injunction was issued to Wall Muhammad Judgment‑debtor restraining him from recoverving this amount from the Rehabilitation Department. The Rehabilitation Department was also informed of this injunction order. In this manner the amount deposited in that department had been attached before judgment. The Rehabilitation Department deposited in Court a sum of Rs. 80,424.94 on 10th November 1967.

4. The Sargodha Central Co‑operative Bank Limited, Sargodha, had obtained an award under the relevant rules framed under the Cooperative Societies Act, 1912 against Ch. Wall Mohammad and one Ch. Mohammad Shafi for a sum of Rs. 3,93.301.96 which was executable as a decree of the civil Court. The Bank submitted an application for execution of the award in the Court of the Senior Civil Judge, Sargodha on 12th June 1967 which was registered as Execution Case No.

179. Similarly respondent No. 2 Zaman Shah had also obtained a decree for recovery of Rs. 20,000.00 with costs against Wall Mohammad on 3rd March 1964 and he made an application for execution dated 20th December 1966 being Execution Case No.

184. These two respondents also prayed for attachment of the above‑mentioned amount lying in the Settlement & Rehabilitation Department.

5. Apprehending that the amount may not be rateably distributed between the different decree‑holders under the mandatory provisions of section 73, C. P. C. the petitioners presented an application before the Execution Court on 8th December 1967 contending that they were entitled to this amount in terms of the decree passed in their favour and no portion could be paid to any other decree‑holder. On the other hand the Assistant Registrar, Co‑operative Societies exercising powers of the Collector under the Co‑operative Societies Act, 1925, sent a letter dated 13th November 1967 to the Court claiming that the amount of award in favour of the respondent‑bank being recoverable as arrears of land revenue, its recovery was a first charge over the amount received from the Settlement Department. The learned Senior Civil Judge, however. by his impugned order dealt with the contentions of the Collector as well as the petitioners. It was held that the amount involved in the award in favour of the respondent‑bank could not be recovered as arrears of land revenue. It was further held that by virtue of section 73, C. P. C. as soon as the assets come into the hands of the Executing Court all the decree‑holders become owner of the same according to their respective proportionate share and those assets cease to be the property of the judgment‑debtor. It was also observed that the award in favour of the petitioners did not declare that the amount in the Rehabilitation Department belonged to or was owned by them and only a mode of satisfac tion of the decree was provided in the award which at most amounted to an attachment before judgment. As a result of this finding the amount of Rs. 80,424.03 was rateably distributed and a sum of Rs. 17.188.50 was given to the petitioners while Rs. 60,005.94 and Rs. 3,230.50 were awarded to respondents 1 and 2 respectively In part satisfaction of their respective decrees.

6. Learned counsel for the petitioners contended that the amount in dispute was not an asset held by the Court within the meaning of section 73, C. P. C. as ft was not for the benefit of all the decree‑holders of Wali Mohammad but was in fact recoverable by the petitioners by virtue of the award which merged into a decree of the civil Court. Alternatively it was argued that the decree had created a charge in favour of the petitioners in regard to this particular amount. For this latter proposition reliance was placed on Kanhaiya Lal Chaube v. Jangi (A I R 1926 All. 527), in which it was held that a charge created by the arbitrator was valid although it did not operate to transfer any interest in the mortgaged property. Reference was also made to Ventakachalla Pillai v. M. R. Rajagopal Nandu and others ((1945) 58 L W 532), Tirath Ram v. Official Receiver, Ferozepore (A I R 1933 Lah. 509) and Nathan Lai and others v. Durga Das (A I R 1931 All. 62) for the same proposition. Learned counsel for the respondents on the other hand contended that the civil Court's decree in favour of the petitioners neither entitled them to the amount deposited with the Settlement Department nor created a charge in their favour but only laid down a mode of execution of the decree for recovery of money passed in their favour. He also argued that the decree could not be interpreted as creating a charge because that would be contrary to the principle laid down in section 100 of the Transfer of Property Act which contemplates creation of a charge only in regard to the immovable property. According to the counsel the direction in the award and consequent decree at most amounted to an attachment before judgment to which section 73, C. P. C. will apply. He relied upon H. S. Pardasani and others v. T. K. Jeshwani and others (A I R 1930 Sind 300), Satnarain Prasad Choudhry and others v. Mahabir Prasad Choudhry and others (A I R 1939 Pat. 392), Navaj Bhavdu Patil v. Totaram Govind Patil (A I R 1931 Bom. 252), Kanaiyalal Kripa Sankar Bijoy Sankar Gobinja Sankar Dikhshit Firm v. Mvi Shah Mahmood Palwan and another (P L D 1959 Dacca 939) and Messrs Commerce Bank Ltd. Karachi v. Mst. Nafizun Nisa Begum and others (P L D 1970 Kar. 481). Reference was made to section 73(1)(c) of the C. P. C. in support of the plea that only an encumbrance with regard to immovable property was excepted from the provisions of section 73, C. P. C. The learned counsel for the respondent also challenged the competence of the revision petition on the ground that under section 73(2) a Civil Suit was competent and an alternate, adequate and efficacious remedy being available the Court should refuse to exercise its revisional jurisdiction. He referred to Mst. Gulab Khatun and others v. Chaudhri and others (A I R 1916 Lah. 201), Sheikh Baldar v. Sheik Imam (A I R 1925 Nag. 31), Birendra Bikram Singh v. Basdeo and others (A I R 1936 Oudh 135) and Ram Charan Das v. Hira Nand (A I R 1945 Lah. 298).

7. I have given anxious consideration to the arguments of the learned counsel for the parties and I am of the view that there is nothing in section 73, C. P. C. which may allow the Executing Court to go behind the decree. This was not a case where the judgment‑debtor might have privately agreed to pay the amount in custody of the Rehabilitation Department to the petitioners or where he might have asked the Executing Court to pay the above amount to the petitioners only. The award clearly stated that in discharge of the amount to which the petitioners were held entitled, they would be paid a sum of Rs. 91,638.94 which was to be paid by the Rehabilitation Department to Wali Mohammad and the balance amount was to be paid in two equal instalments. This award was made a rule of the Court and a decree was passed in accordance with it. Clearly, therefore, the terms of the decree were that the petitioners, entitled to recover the balance of Rs. 21,277.2; from Mohammad in two equal instalments and they were also vested with the right to be paid a sum of Rs. 91,638.94 from the amount recoverable by Wali Mohammad from the Rehabilitation Department. This clearly amounts to creating an entitlement of the above amount of Rs. 91,638.94 in favour of the petitioners by a decree of the Court which will remain effective unless set aside in F. A. O. No. 25 of 1963. The Executing Court had no jurisdiction to hold otherwise. The decree says that the whole amount of Rs. 91,638.94 will go to the petitioners while the Executing Court, contrary to the specific terms of the decree, has held that only a fraction will be paid to the petitioners and the rest of the amount which forms the bulk of the amount deposited by the Settlement and Rehabilitation Department will be paid to respondents 1 and

2. This is not construing the decree but amounts to bye‑passing the decree or going behind it. It was held in Dathatroya Govindseth Lubri v. Paphotham Nararonweth (A I R 1922 Bom. 31) that a Court distributing assets cannot go behind the decree even on ground of fraud. Respectfully I agree with this dictum of law. By emphasising that the decree in favour of the petitioners only laid down a mode of payment of the decretal amount, the Court cannot give jurisdiction to itself where there is none. Similarly there is hardly any analogy between an attachment before judg ment and the terms of a decree.

8. Section 73, C. P. C. does not in any way override the principle of the finality of the decree passed by the Civil Court. It merely provides that "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 rateably distributed among all persons. The object of section 73, C. P. C. Is to equitably distribute between different decree‑holders the assets of the judgment‑debtor. It is only a departure from the principle of first come first served. According to this section only assets held by a Court could be rateably distributed which clearly means assets which are held by a Court for the benefit of 6 all the decree‑holders as distinguished from the case where the Court is merely a Custodian for the benefit of particular persons. The criterion to judge whether the Court holds the assets for the benefit of all the decree‑holders or for the benefit of any of them is whether those assets were subject to more attachment than one.

9. The object of section 73, C. P. C. was summarised by Strachey, C. J. in Bithal Das v. Nand Kishore (I L R 23 All. 106) at page 110:‑ " Now the object of the section is two fold. The first object is to prevent unnecessary multiplicity of execution proceedings, to obviate in a case where there are many decree‑holders, each competent to execute his decree by attachment and sale of a particular property, the necessity of each and every one separately attaching and separately selling that property. The other object is to secure an equitable administration of the property by placing all the decree‑holders in the position I have described upon the came footing and making the property rateably divisible among them, instead of allowing one to exclude all the others merely because he happened to be the first who had attached and sold the property." In Hoti Lal v. Chatura Prasad and others (A I R 1941 All. 110) Iqbal Ahmad, J. observed:‑ "It cannot be disputed that section 73 enacts a mere rule of procedure and not a rule of substantive law. It merely enacts a rule by which decree‑holders, in specified cases, can resort to a cheap and speedy procedure for the realization of their decrees. It does not, however, clothe a decree‑holder with a right which he does not possess. It does not enlarge the rights given to a decree‑holder by his decree, nor does it cut down the rights to which a decree‑holder may be entitled by the decree in his favour. It follows that section 73 cannot be invoked to entitle a decree‑holder to satisfy his decree from assets which he could not touch if section 73 was not on the statute book. Conversely the provisions of section 73 cannot be utilized to deprive a decree‑holder from satisfying his decree from assets which he would have been otherwise entitled of follow in execution."

10. In Khazan Chand v. Mots Singh (A I R 1935 Lah. 914) it was held that when "money in the custody of Court is subject to more attachment than bite, the Court must award priority to the first in point in time and in the other decree‑holders want to share In the rateable distribution, they must apply in time to the first attaching Court." The underlined" portion clearly brings out the principle described above.

11. Reference may also be made to Radha Mohan v. Mst. Wahidan (A I R 1934 Pat. 685) wherein it was held that a fund or a sum of money cannot be regarded as assets unless it is in some sense the property of the judgment‑debtor and can, therefore, be legitimately applied to the payment of his debt. In view of the fact that under the decree passed in favour of the petitioners this particular amount was specifically assigned to them, it could not C be described as assets held by the Court and could not be attached by respondents 1 and

2. Section 73, C. P. C. was not, therefore, attracted to the facts of the present case.

12. There is considerable weight in the alternative argument of the learned counsel for the petitioners that even if the decree did not contemplate assignment to or vesting of this amount in the petitioners, it does create a charge in favour of the petitioners in regard to the amount deposited by the Settlement and Rehabilitation Department up to a maximum of Rs. 91,638.94. In the argument of the learned counsel the word `charge' has not been used in the sense in which it has been used in section 100 of the Transfer of Property Act. It may merely mean the priority of the petitioners to get the decree satisfied in part by recovery of this amount in preference to any other decree‑holder. Undoubtedly section 73, C. P. C. does not aim at disturbing a mortgage, a charge or an encumbrance. Ram Govind Pandey v. Brij Ratan Das (A I R 1937 All. 424). The proviso to sub-section (1) of section 73, C. P. C. makes this amply clear. If encumbrances, charge or mortgage of immovable property is excepted from the provisions of section 73, there appears to be no valid reason to hold that such a charge created in regard to movable property can be rendered nugatory by section 73, C. P. C. The provisions of this section are not susceptible of such a wide interpretation. In m) view even if such an encumbrance had been created by a contract between the judgment‑debtor and the petitioners before the passing of the decree in the latter's favour, the assets obtained by the Court will not be deemed to be assets held by tee Court within the meaning of section 73, C. P. C. Similarly the creation of encumbrance whether by statute, by contract or by a decree of the Court must stand on the same footing.

13. The argument of the learned counsel for the respondents that section 73(1)(c) contemplates only an encumbrance of immovable property and, therefore, the encumbrance of money or movable property is not excepted from section 73 is fallacious because section 73 is not exhaustive of cases of rateable distribution. The cage of Messrs Commerce Bank Ltd., Karachi v. Mst. Nafizun Nisa Begum and others (P L D 1970 Kar. 481) relied upon by the learned counsel for respondent No. 1 makes it clear. In that case it was held that section 73, C. P. C. was not applicable in terms, but it was observed that it did not necessarily mean that the principle of the section are not applicable.

14. The authorities relied upon by the learned counsel for the respondent are not relevant to the decision of the matter in issue. H. S. Pardasant and others v. T. K. Jeshwani and others (A I R 1930 Sind 300) and Satnarain Prasad Choudhry and others v. Mahabir Prasad Choudhry and others (A I R 1939 Pat. 392) merely lay down that where an amount is voluntarily paid by the judgment‑debtor or is paid to avoid attachment it is an asset held by the Court. There is no dispute with this proposition. I will go to the extent of saying that even if such money has been deposited with the express object of paying it to one particular decree‑holder, it would still be asset held by the Court because it is quite possible that the deposit in the name of particular person may have been made by the judgment‑debtor collusively.

15. In Navaj Bhavdu Patil v. Totaram Govind Patil (A I R 1931 Bom. 252) it was held that where there are competing decree‑holders who apply for the execution of their decrees, Order XXI, rule 72 must be taken subject to the provisions of section

73. It does not lay down the proposition that a decree of the civil Court couched in whatever terms it may be, will always be subject to section 73, C. P. C. or that section 73 overrides a decree of the Court and allows the executing Court to go behind the decree. In Kanaiyalal Kripa Sankar Bijoy Sankar Dikshit Firm v. Shan Mahmood Palwan and another (P L D 1959 Dacca 939), it was held that the word `assets' used in section 73 referred only to money and a payment order received from a bank was not an asset before it was cashed. The question before the Court was whether a decree" holder who has made an application for rateable distribution after the receipt of the payment order but before its conversion into money could have the benefit of section 73, C. P. C. In Messrs Commerce Bank Ltd., Karachi v. Mst. Najizun Nisa Begum and others (P L D 1970 Kar. 481) it was held that the principle of rateable distribution was the principle of equity which would be applied apart from section 73 provided there are no express provisions to the contrary.

16. The question of maintainability of the revision petition need not detain me any further because of my finding that the order of the learned executing Court was without jurisdiction. Section 73(2) only provides that 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. The first condition for the applicability of this provision is that the assets must be liable to be rateably distributed and I have found that the assets in the present case were not so liable. Otherwise also the question, as observed in Ram Charan Das v. Hira Nand (A I R 1945 Lah. 298), is whether suit provides for an efficacious remedy. In my view the remedy by way of a suit is not efficacious and adequate particularly when only the question of jurisdiction of the executing Court was involved and this revision petition has) already been pending for more than four years.

17. The upshot of this discussion is that the impugned order of the learned Senior Civil Judge is set aside and it is held that the petitioners are entitled to the full amount deposited by the Settlement and Rehabilitation Department in the Executing Court. In view of the difficult nature of the question involved I do not make any order as to costs. A. N. Q. Petition accepted.