1. The judgment-creditor in this case applies for payment of the money received by the Sheriff under a warant of attachment issued in execution of the decree in Suit No. 456 of 1918. The Prothonotary refused to issue an order in form 64 holding that the money was an asset available for ratable distribution.
2. The judgment-creditor had taken out a warrant in form 48 for attachment of the moveable property of the judgment-debtor under Order XXI, Rule 43.
3. The bailiff entered judgment-debtor's shop and showed the warrant to a partner in the judgment-debtor's firm and pointed out that if the money were not paid he would seize and keep in his custody the moveable property in his 6hop. The judgment-debtor then paid the decretal amount with costs of execution and sheriff's poundage.
4. The question is whether this amount is available for ratable distribution among the other judgment-creditors who had made previous execution applications.
5. Section 295 of the Civil Procedure Code of 1882 has been considerably enlarged under Section 73 of the present Code. The former referred to assets 'realised by sale or otherwise in execution of a decree,' and the latter refers to 'assets held by a Court.' The phrase 'assets realised by sale or otherwise' was construed in the case of Purshotamdass Tribhovandass v. Mahant Surajbharthi Haribharthi I.L.R(1882). 6 Bom. 588, to be assets which have been realised from the property of the judgment-debtor by sale or otherwise. The words 'or otherwise' were explained in the judgment by reference to Sections. 291 and 305 equivalent to Order XXI, Rules 69 and 83,-that is where money is paid to stop a sale or is raised by private alienation to set aside a sale. This decision was based on the position of Section 295 in the Code of Civil Procedure where it appeared under Chapter XIX of the Code dealing with execution of decrees and under the sub-division to that Chapter referring to sale and delivery of property. As a result of this construction it was held that monies paid by a judgment-debtor under arrest in full satisfaction of the decree were not assets realised in execution by sale or otherwise, because the process of execution had not been directed against the property.
6. Following this case, it was held in Gopal Dai v. Chunni Lal I.L.R(1885) 8 All. 67 and in Vibudhapriya Tirthaawami v. Yusuf Sahib I.L.R(1905) Mad. 380 that money paid to remove an attachment was not within Section 295 as an attachment was not a process of 6ale or conversion otherwise of property.
7. The correctness of the reasoning in Purshotamdas' case seems to have been doubted in Manilal Umedram v. Nanabhai Maneklal I.L.R(1903) 28 Bom. 264, where Sir Lawrence Jenkins explained that the word 'realised' implied that property had been converted into or obtained in cash or some other form available for immediate distribution. Hence, if money is paid into Court it is obtained or realised, even though there has been no sale or conversion of the judgment-debtor's property. On this meaning of the word 'realised' it was not necessary to limit the words 'or otherwise' as Sir Charles Sargent did in Purshotamdas' case to processes of execution ejusdem generis with sale.
8. I think the amendment in the present Code of Civil Procedure was intended to overrule Purshotamdas' case and to provide that all assets held by the Court are available for ratable distribution by whatever process of execution they may have been obtained. I also think that the assets must have been obtained in execution. The reference to costs of realization and the position of the section in the Code at the end of Part II on execution seems to me to lead irresistibly to this conclusion. This was also the view taken by Bake well J. in Katum Sahiba v. Hajee Badsha Sahib I.L.R(1913) Mad. 221, The asset, therefore, must be something obtained in execution in a form available for distribution among the judgment creditors.
9. Under Section 73, therefore, I think it necessary to establish (1) that the money is an asset held by the Court, and (2) that it has been realised or obtained in execution.
10. To turn now to the present case, there is no doubt as to the first point that the money is an asset held by the Court. As to the second point, it is argued that it has not been realised in execution as the warrant of attachment was not in fact executed. This seems to me to be a mere quibble. It matters not whether the property was actually taken into custody by the bailiff or not. Physical contact, it may be noted, is not necessary to actual seizure under Order XXI, Rule 43-Mul-tan Chand Kanyalal v. Bank of Madras I.L.R(1903) Mad. 346, see also Bissicks v. Bath Colliery Co (1878) 3 Ex.D. 174. The warrant directed a seizure and after seizure release of the goods from custody if the judgment debt was not paid. This, I take it, is what happened and in any event the money was paid under stress of the warrant. The warrant is a process of execution and it was the warrant that procured the payment of the money.
11. If the matter were res Integra, I should hold that the money was an asset held by the Court and realised in execution, and, therefore, liable to ratable distribution. But it has been held in Sorabji Coovarji v. Kala Raghunath I.L.R(1911) 36 Bom. 156, 13 Bom, L.R. 1193 that the money paid to remove an attachment under Order XXI, Rule 55, is not subject to ratable distribution, the reasoning being (1) that the money was not realised in process of execution, and (2) that ratable distribution would nullify the provisions of Rule 55. The first ground follows the cases decided on the words ' sale or otherwise', which are held to mean sale or other process of execution provided for in the Civil Procedure Code-Sew Bux Bogla v. 8Mb Chunder Sen I.L.R(1886) Cal. 225; Prosonnomoyi Dassi v. Sreenauth Roy I.L.R(1894) Cal. 809; and Vibudhapriya Tirthaswami v. Yusuf Sahib I.L.R(1905) Mad. 380. But these cases all followed Purshotamdas' case in restricting the process to one of sale or conversion of the property and I venture to doubt whether this is not too restrictive a construction under the amended section in which the words 'sale or otherwise' have been dropped and in which there is merely an implication that the assets should have been realised or obtained in execution proceedings. I also venture to doubt the correctness of the second reason. Order XXI, Rule 55 operates effectively where there is one decree-holder. If there are a number of decree-holders, there is no scope for the rule for the judgment debtor has no motive for paying off one judgment-creditor when the same property is liable to be reattach-ed by the others. To allow one decree-holder to be paid off' in full when the property is insufficient to discharge other judgment debts might possibly be undue preference and defeat the object of the section which is equal distribution of all the monies received in execution. Again, why should a judgment creditor, whose attachment has been removed under Order XXI, Rule 55, be in a better position than a judgment-creditor who has taken the trouble of bringing the property to sale. Lastly, if the money paid under Order XXI, Rule 55, to remove an attachment is not available for ratable distribution, then a fortiori money paid to stop a sale under Order XXI, Rule 83, would also not be so available. But even under the old section it was assumed by Sir Charles Sargent in Purshottamdas' case that money paid to stop a sale is available for ratable distribution. So that the interpretation put upon the section in Sorabji Coovarji v. Kala Raghunath I.L.R(1911) 36 Bom. 156; 13 Bom. L.R. 1193 makes the new section more restrictive than the old one, and this is not what the Legislature intended.
12. I agree with the decision in Thiraviyam Filial v. Lakshmana Pillai I.L.R(1917) Mad. 616 that money paid under Rule 55 is an asset held by the Court and is like the money paid to stop a sale under Rule 83 available for distribution. But I differ from that case in that I think that Section 73 is restricted to what is paid into Court by virtue of process of execution.
13. I have ventured to express my opinion as to the construction of the section but I feel bound to follow the decision in Sorabji's case and I, therefore, direct the Prothonotary to issue the payment order in form 64.
14. This order should not be issued for three weeks pending an appeal.
15. The attaching judgment-creditor's costs including the costs of the previous application to be costs in the execution. The other judgment-creditors to pay their own costs.