1. This suit was with the leave of the Court withdrawn by the plaintiffs on the 3rd July 1916 with permission to file a fresh suit in England, the Court ordering the plaintiffs to pay to the 1st and 2nd defendants, who were separately represented, their respective costs of the suit when taxed.
2. The second defendants' costs were taxed at Rs. 1259-15-0.
3. On the 12th December 1916, the 2nd defendants obtained an order for the arrest of the partners of the plaintiff-firm under Order XXI, Rule 38 of the Code of Civil Procedure in execution of the decree.
4. One of the partners of the plaintiff-firm was arrested under Section 55 of the Code on the 14th December 1916 when he paid to the Sheriff's bailiff the amount with the costs of execution and Sheriff's poundage, amounting in all to Rs. 1408-13-1 and was released under the 4th proviso in that section.
5. The 1st defendants had, previously, on the 8th February 1916, issued execution against the plaintiffs under an order of the Court obtained earlier in the same suit for Rs. 4130-15-5 'but under this execution they had obtained only Rs. 2222-12-7 leaving a balance of Rs. 1908-2-10 due to them.
6. On the 22nd January 1917, the Prothonotary issued a notice under Section 3 of the Code of Civil Procedure to the 1st defendant to appear before the Sitting Judge in Chambers in support of their claim when an order would be made for the distribution of the assets recovered by the Sheriff.
7. The notice was returned before me on the 27th January 1917 when the 1st defendants did not appear. Messrs. Little & Co., attorneys, appeared on behalf of the 2nd defendants and (contended that the moneys now held by the Court were not 'assests held by the Court' within the meaning of Section 73 and that no notice under that section should have been issued as the 2nd defendants were entitled to the whole of the money: Purshotamdma v. Mahanant Surajbharthi I.L.R. (1882) Bom. 588. This decision was under the old Code but the Court has held that moneys voluntarily paid by a judgment-creditor under Order xxI, Rule 55 are not assets within the meaning of the section, Sorabji Coovarji v. Kala Raghunath I.L.R. (1911) Bom. 156 and this money should be treated in the same way.
8. The object of Section 73 is to avoid multiplicity of execution proceedings, Bithal Das v. Nand Kishore I.L.R. (1900) All. 106 but if an order for rateable distribution were made that would not be achieved, for the 2nd defendants would have to issue a fresh execution for the balance due to them on the decree after sharing the amount paid under the first execution with other judgment-creditors.
9. My attention was, however, drawn to the notes on Section 73 in Mulla's Civil Procedure Code, 5th Edition, where the decision in Sorabji Coovarji v. Kala Raghunath was doubted and Pur-shotamdas v. Mahanant Surajbharthi thought to be no longer applicable.
10. In my opinion monies paid by a judgment-debtor to the officer arresting him in order to secure his release are not assets held by a Court so that they are liable to rateable distribution under Section 73 of the Civil Procedure Code among the persons who have made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor. It appears that the section was only intended to apply to assets realised by the sale of property attached and that it was not intended that a debtor who paid to the officer arresting him the amount due to the execution creditor who had obtained the order of arrest, should be liable to be again arrested because the amount so paid had to be distributed amongst all the creditors who might have applied for execution either against the person or his property.