[Cites 7, Cited by 0]
Kerala High Court
Poulose vs Shaju on 16 December, 2025
O.P.(C)No.606/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA, 1947
OP(C) NO. 606 OF 2016
AGAINST THE ORDER DATED 15.12.2015 IN E.P.NO.28/2014 IN
O.S.NO.211/2012 SUB COURT, MUVATTUPUZHA
PETITIONER/S:
POULOSE
AGED 39 YEARS
S/O. VARGHESE, STENO TYPIST IN NTPC LTD.,
RESIDING AT N.T.P.C. TOWNSHIP,
QUARTER NO. A10, CHEPPAD P.O.,
ALAPPUZHA FROM KALAPPURAKKUNNEL,
PAINGARAPPALLY DESOM, MULANTHURUTHY VILLAGE,
KANAYANNUR TALUK.
BY ADV SRI.B.KRISHNA MANI
RESPONDENTS:
1 SHAJU
AGED 53 YEARS
S/O. MATHAI, MANDOTHIPARAMBIL,
PIRAVOM VILLAGE, PIRAVOM KARA,
MUVATTUPUZHA TALUK-686664.
2 SANTHOSH VARGHESE
PAKALOMATTOM NAZRATHU HOUSE,
PERUVA P.O., KUNNAPPALLY KARA,
MULAKKULAM VILLAGE FROM SAJIBHAVAN,
EDAKKADAVU, THENGAMOM P.O.,
THENGAMOM KARA, PALLICKAL VILLAGE,
ADOOR TALUK-690522.
3 JOMOL P.A.
PAKALOMATTOM NAZRATHU HOUSE,
O.P.(C)No.606/2016
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PERUVA P.O., KUNNAPPALLY KARA,
MULAKKULAM VILLAGE FROM SAJIBHAVAN,
EDAKKADAVU, THENGAMOM P.O.,
THENGAMOM KARA, PALLICKAL VILLAGE,
ADOOR TALUK-690522.
BY ADVS.
SRI.LEGITH T.KOTTAKKAL
SRI.S.VINOD BHAT
THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 02.12.2025, THE
COURT ON 16.12.2025 DELIVERED THE FOLLOWING:
O.P.(C)No.606/2016
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P. KRISHNA KUMAR, J.
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O.P.(C)No.606 OF 2016
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Dated this the 16th day of December, 2025
JUDGMENT
The petitioner, who obtained a charged decree against the
second respondent as per Ext.P2 decree passed by the Sub
Court, Kottayam, is aggrieved by the execution proceedings
pending before the Sub Court, Muvattupuzha, wherein the first
respondent is proceeding against the said judgment-debtor for
execution of his decree, without satisfying the petitioner's
decree. According to the petitioner, he is entitled to claim
rateable distribution of the assets held by the said court.
2. The petitioner is a blind person, as is evident from
Ext.P7. The first respondent herein filed Ext.P5 application
before the Sub Court, Muvattupuzha, seeking to implead the
petitioner in E.A.No.168/2014 in E.P.No.28/2014. The grievance
of the petitioner is that while disposing of the said
application as per Ext.P6 order, the learned Sub Judge held
that the decree-holder/first respondent herein has every right
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to seize the amount attached as per E.A.No.137/2014 from the
possession of the garnishee. The petitioner claims that his
decree also is to be satisfied out of the said amount.
3. Heard Sri.B.Krishna Mani, the learned counsel
appearing for the petitioner and Sri.S.Vinod Bhat, the learned
counsel appearing for the respondents.
4. As per Section 73 of the Code of Civil Procedure, when
assets are held by a court and more persons than one have made
applications to the court for execution of decrees for payment
of money passed against the same judgment-debtor, such assets
shall be rateably distributed among all such persons, provided
the applications are made before the receipt of the assets.
The said provision has to be read along with Section 63 of the
Code, which stipulates that where property is under attachment
in execution of decrees of more courts than one, and one of
such courts is not inferior in grade to the others, the court
under whose decree the property was first attached shall
receive and realise such property. Sub-section (2) of Section
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63 further clarifies that proceedings taken by a court
executing one of such decrees shall not be deemed invalid
merely because the court proceeded otherwise than in
accordance with Section 63(1).
5. In the present case, the petitioner was only sought to
be impleaded in an execution application pending before the
Sub Court, Muvattupuzha, which, in my opinion, would serve no
effective purpose. However, during the course of hearing, the
learned counsel appearing for the petitioner submitted that
the petitioner is at least entitled to seek rateable
distribution of the assets, and hence the Original Petition
might be disposed of by giving him an effective opportunity to
make necessary application in that regard.
6. Admittedly, the petitioner has not so far filed an
application under Section 73 of the Code of Civil Procedure.
The question that which court should entertain an application
for rateable distribution when the assets are held by one
court while the decrees are passed by different courts has
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long been a vexed issue. On this aspect, divergent views have
been expressed by different High Courts. The Madras High
Court, in Chettiar v. Chettiar (AIR 1973 Mad 313), held that
an application for execution must be filed before the very
court which has realised and is holding the assets, and that
failure to do so would disentitle the applicant from claiming
rateable distribution.
7. The Bombay High Court, however, in Dhirenda v.
Virabhadrappa (AIR 1935 Bom 176), adopted a different view. It
held that it is sufficient if such an application is made
before an "appropriate court", and that it need not
necessarily be filed before the court actually holding the
assets. The Court observed that Sections 63 and 73 of the Code
must be read harmoniously. Section 63 prevents decree-holders
of inferior courts from enforcing their decrees by imposing
upon superior courts the duty of distributing the assets,
thereby, in effect, executing not only their own decrees but
also those passed by subordinate courts. Guided by
considerations of equity and common sense, the Court held
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that, for the purpose of claiming rateable distribution under
Section 73, it would suffice if the application is filed
before the court which passed the decree, prior to the receipt
of assets, and not necessarily before the court in whose
custody the assets lie.
8. A similar view has been taken by the Punjab High
Court in Gurdial Kaur v. Satindar Singh (AIR 1965 Punj 412).
It is held that even though Section 73 employs the expression
'the court', undue importance need not be attached to the
article 'the'. In Mulla's Code of Civil Procedure (1995), Vol.
I, p. 549, the learned author states as follows:
"It is submitted that the Bombay and Punjab view
is correct, firstly because Sections 73 and 63 must be
read harmoniously and secondly because the reason given
in the Madras case cannot be sustained, since the court
receiving and holding the assets must know from the
execution applications before it about decrees passed
by other courts. Besides, such a view is contrary to
the fundamental principle that an execution application
must be presented before the court which passed the
decree or to the court to which it is transferred for
execution."
9. However, the learned counsel appearing for the
contesting respondent pointed out that the petitioner had
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earlier approached this Court by filing Tr.P.(C) No.2/2016
followed by Tr.Appeal (C) No.2/2016, seeking transfer of the
execution proceedings from the Sub Court, Muvattupuzha to the
Sub Court, Kottayam, and that the said attempts were
unsuccessful.
10. Be that as it may, irrespective of the outcome of the
said proceedings, it is open to the petitioner to approach the
Sub Court, Kottayam under Section 39 of the Code of Civil
Procedure for transfer of his decree to the Sub Court,
Muvattupuzha, subject to the satisfaction of the statutory
requirements, so as to enable him to seek rateable
distribution of the assets. In view of the above factual and
legal position, the petitioner has to work out his remedies in
accordance with law. Nevertheless, it is clarified that if the
petitioner moves for rateable distribution of the assets or
initiates any other proceedings as permitted by law, nothing
contained in Ext.P6 order passed by the learned Sub Judge,
Muvattupuzha shall stand in his way.
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Therefore, the original petition is disposed of with the
above observations. If the petitioner makes any such
application as indicated above within a period of one month
from the date of receipt of a certified copy of this judgment,
the respective court shall consider and dispose of the same at
the earliest. The learned Sub Judge, Muvattupuzha is directed
to defer disbursement of the amount pursuant to Ext.P6 order
for a further period of three months, or for such other period
as may be found necessary.
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
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APPENDIX OF OP(C) NO. 606 OF 2016
PETITIONER'S EXHIBITS
EXHIBIT P1- TRUE COPY OF THE JUDGMENT DATED
30-11-2013 IN O.S.NO. 229 OF 2012 BEFORE THE
SUB COURT, KOTTAYAM.
EXHIBIT P2- TRUE COPY OF THE DECREE DATED 30-
11-2013 IN O.S.NO. 229 OF 2012 BEFORE THE SUB
COURT, KOTTAYAM.
EXHIBIT P3- TRUE COPY OF THE EXECUTION
PETITION, E.P.NO. 243/2015 IN O.S.NO. 229 OF
2012 BEFORE THE SUB COURT, KOTTAYAM.
EXHIBIT P4- TRUE COPY OF THE APPLICATION
DATED 04-12-2015 IN O.S.NO. 229 OF 2012
BEFORE THE SUB COURT, KOTTAYAM.
EXHIBIT P5- TRUE COPY OF THE APPLICATION
DATED 28-10-2014 IN E.A.NO. 168/2014 IN
E.P.28/2014 IN O.S.NO. 211/2012 BEFORE THE
SUB COURT, MUVATTUPUZHA.
EXHIBIT P6- TRUE COPY OF THE ORDER DATED 15-
12-2015 IN E.P. 28/2014 IN O.S.NO.211/2012
BEFORE THE SUB COURT, MUVATTUPUZHA.
EXHIBIT P7- TRUE COPY OF THE CERTIFICATE
DATED 26-11-2010.
