IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 35340 of 2008(F) -------------------------- AGAINST THE ORDER DATED 23/09/2008 IN E.A.I536/2004 IN EP 123/ 1998 IN OS.832/1988 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): --------------- THE MUKKATTUKARA CATHOLIC CO. LTD., MUKKATTUKARA, NETTISERY.P.O, THRISSUR. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): --------------- 1. M/S. SUVARNA KURIES & LOANS (P) LTD., THRISSUR. 2. ANIS MATHEW, W/O. LATE MATHEW, RESIDING AT MISSION QUARTERS, CHEMBUKKAVU VILLAGE, THRISSUR TALUK. 3. BEENA, D/O. LATE MATEHW, -DO- 4. JUMAN MATHEW, S/O. -DO- 5. BABU MATHEW, S/O -DO- 6. PAUL VARGHESE, S/O. KOCHU THRESSIA, CHERAKKEKKARAN HOUSE, KUDUVARA, THRISSUR. 7. ROY VARGHESE, -DO- 8. RENOL, W/O. M.N. PAUL, NEELANKAVIL HOUSE, MARI BHAVAN, LOURDUPURAM, THRISSUR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPPENDIX PETITIONER'S EXHIBITS:- P1: Dated 26-10-2004, true copy of the application EA. No.536 of 2004 in E.P.No.123 of 1998 in O.S.No.832 of 1988 of Sub Court, Palakkad. P2: dated 14-1-2005, true copy of the objection in E.A.No. 536 of 2004 in E.P.No.123 of 1998 in O.S.No.832 of 1988 of Sub Court, Palakkad. P3: dated 23-9-2008, true copy of the order in E.A.No.536 of 2004 in E.P. No. 123 of 1998 in O.S.NO.832 of 1988, Sub Court, Palakkad. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 35340 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 8th day of October, 2009 JUDGMENT This writ petition under Article 227 of the Constitution of India is filed by the decree holder in O S Nos. 907 and 909 of 1990 on the file of the Subordinate Judge’s Court, Thrissur seeking to set aside Ext.P3 order dated September 23, 2008 passed by the Sub Court Palakkad in EA 536 of 2004 in EP No.123 of 1998 in O.S No.832 of 1988 rejecting the petition for rateable distribution of the assets in the hands of the court by the sale of the plaint schedule property in that suit. 2. The petitioner filed two suits O.S. Nos. 907 and 909 of 1990 before the Sub Court, Thrissur for recovery of money against one C.P.Mathew and his wife Annis Mathew and one Kochuthresia . Those suits were decreed on 03.08.1991 and 23.01.1991 respectively. The decrees were got transferred to Sub Court, Palakkad and E.P.Nos.195 and 196 of 2000 were filed before that court for executing the decrees. The 1st respondent in this writ petition filed O.S.No.832 of 1988 agaisnt the same judgment debtors and that suit was decreed on 30-10-1989. E.P.No.123 of 1998 has been filed before the Sub Court, Palakkad for execution of that decree. The plaint schedule property in O.S.No.832 of 1998 was sold in auction and the 1st respondent has purchased the WPC 35340/08 2 same in its own name. Therefore, the petitioner filed E.A.No.536 of 2004 for rateable distribution of the assets. The 1st respondent filed objection therein. The Sub Court rejected the application by order dated September 23, 2008. Ext.P3 is copy of the said order. 3. In this writ petition, notice was issued to the 1st respondent. Though notice was received by the 1st respondent, he did not enter appearance. Respondents 2 to 8 are only judgment debtors and hence, notice against them are dispensed with. 4. Heard the learned counsel for the petitioner. 5. The counsel for the petitioner submitted that the lower court dismissed the petition holding that the petitioner has applied for rateable distribution after the sale of the plaint schedule property and that under section 73 of the Code of Civil Procedure, he should have applied prior to the sale of the property, which is clearly illegal, as under section 73(1) of the Code of Civil Procedure, it is clear that even after the sale, decree holder can apply for rateable distribution of assets. 6. A reading of proviso © to sub-section (1) of section 73 of the Code of Civil Procedure would show that section 73(1) proviso © fourthly is applicable only with respect to sale for the discharge of incumbrance thereon. This is a case of simple sale. Therefore, there would be no requirement of an application for rateable distribution before the sale in the Execution Petition in which the sale was ordered. WPC 35340/08 3 The lower court passed Ext.P3 order relying on decisions in Boban V. Sajith Kumar (2004(1) KLT S.N. 4 (Case No.4), Joseph Antony V. Varghese (1990(2) KLT SN 5 (Case No.7) and Subramonia Iyer V. Sankaran Unni (1953 KLT 149). But the principles laid down in the above decisions do not apply to the facts in the present case. Even in those decisions it has been held that the petition for rateable distribution need not be filed prior to the sale of the property in dispute, but execution petition should have been filed before the sale. In Abdul Latheef V. Vinodan (2007(1) KLT 966) this Court held that so long as the decree holder whose decree remains unsatisfied and he had filed an execution petition for realisation of the decree debt before sale of the property, and applies for rateable distribution, he is entitled to rateable distribution. In the light of the principles laid down in the above decision and as provided in sub-section (1) of section 73 it is clear that the petitioner is entitled for rateable distribution of the assets held by the lower court in execution of the decree in O.S.No.832 of 1988. Hence Ext.P3 order dated September 23, 2008 is liable to be set aside and E.A.No.536 of 2006 the petition for rateable distribution of assets held by the court has to be allowed. 7. In the result, the writ petition is allowed and Ext.P3 order dated September 23, 2008 rejecting the application for rateable distribution is set aside. Ext.P1 application i.e., E.A.No.536 of 2006 in E.P. No.123 of 1998 in O.S.No.832 of 1988 is hereby allowed. The lower WPC 35340/08 4 court is directed to rateably distribute the assets held by the court in execution of the decree in O.S.No.832 of 1988, between the petitioner and the 1st respondent. P.Q. BARKATH ALI, JUDGE mn