Sections 73 and 74 CPC: Rateable Distribution and Resistance to Execution

Sections 73 and 74 of the Code of Civil Procedure, 1908 conclude Part II of the Code dealing with execution. Section 73 provides for rateable distribution of certain assets held by the Court among qualifying decree-holders. Section 74 deals with unjustified resistance or obstruction to delivery of possession of immovable property in execution.

Current central law: Sections 73 and 74 continue to form part of the Code of Civil Procedure, 1908. Their operation should be read with the relevant execution provisions in the First Schedule, including applicable State or High Court amendments and rules.

Section 73 CPC - Proceeds of Execution Sale to Be Rateably Distributed Among Decree-Holders

(1) 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 such persons:

Provided as follows:

(a) Where any property is sold subject to a mortgage or charge, the mortgagee or encumbrancer shall not be entitled to share in any surplus arising from such sale.

(b) Where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or encumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or encumbrancer the same interest in the proceeds of the sale as he had in the property sold.

(c) Where any immovable property is sold in execution of a decree ordering its sale for the discharge of an encumbrance thereon, the proceeds of sale shall be applied:

First, in defraying the expenses of the sale;

Secondly, in discharging the amount due under the decree;

Thirdly, in discharging the interest and principal monies due on subsequent encumbrances, if any; and

Fourthly, rateably among the holders of decrees for the payment of money against the judgment-debtor who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees and have not obtained satisfaction thereof.

(2) 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.

(3) Nothing in this section affects any right of the Government.

Meaning and effect of Section 73

  • Section 73 applies where assets are held by the Court and more than one decree-holder satisfies the statutory conditions for sharing them.
  • The qualifying decree-holders must have applied for execution of money decrees against the same judgment-debtor before the Court received the assets and must remain unsatisfied.
  • Costs of realization are deducted before rateable distribution.
  • The provisos prescribe special rules where the property is subject to a mortgage or charge and where immovable property is sold for discharge of an encumbrance.
  • If assets are wrongly paid to a person not entitled to them, an entitled person may sue for refund under sub-section (2).
  • Sub-section (3) expressly preserves Government rights.

Section 74 CPC - Resistance to Execution

Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.

Meaning and effect of Section 74

  • The provision concerns resistance or obstruction to obtaining possession of immovable property in execution.
  • It can apply to a decree-holder entitled to possession and to a purchaser of immovable property sold in execution of a decree.
  • The Court must be satisfied that the resistance or obstruction was caused by the judgment-debtor or a person acting on the judgment-debtor's behalf and was without just cause.
  • The Court may order civil imprisonment for a period up to thirty days and may also direct delivery of possession to the decree-holder or purchaser.

Official CPC Reference

For the authoritative central text, see the Code of Civil Procedure, 1908 on India Code.