If a decree-holder has obtained attachment before judgment, it is not necessary for him to file an E.P. in the context of rateable sharing of the sale proceeds - even after sale of property, application for ratable distribution can be filed - salary can be distributed.

Citation

CDJ 2009 APHC 554

G. Ramalinga Swamy Versus N. Kondalu & Another

Head Note

Civil Procedure Code – Section 115, 73 – it becomes clear that whenever an item of property is brought to sale in execution, the adjustment of the sale proceeds thereof shall be made in the priorities mentioned in the provision. At first instance, the sale proceeds have to be adjusted towards the expenses incurred for conducting sale and thereafter, to satisfy the decree, as regards which, the sale is conducted. Any other decree-holder, even where he has filed the E.P., would figure at the fourth place in the order of priority - this Court held that if a decree-holder has obtained attachment before judgment, it is not necessary for him to file an E.P. in the context of rateable sharing of the sale proceeds. That, however, was a case in which the amount, as such, was brought to the Court from a garnishee and not a case where an item of immovable property was brought to sale. Further, clause (c) of Section 73 C.P.C. mandates that the claim of the decree-holder, who causes the property to be sold would have its own precedence, and it is only after the concerned decree is satisfied that the balance would be adjusted for the satisfaction of the other decrees.

Comparative Citations:
2009 (6) ALT 204, 2009 (6) ALD 204, 2009 LAP 256