1. Does Section 490 enable the holder of an. attachment before judgment to rank under Section 295 as an applicant in execution against the property attached after a decree is given in his favour, or is he still obliged to apply for execution under Section 230 and the sections which follow the chapter of the Code upon execution of decrees?
2. Section 490 does not, in express terms, confer the right, but the Advocate General maintained that it is given by implication. The words of the section are 'it shall not be necessary to re-attach the property in execution of such decree.' No application for attachment, therefore, is necessary. The attachment before judgment enures, and becomes an attachment in execution. That is the effect of the section.
3. Can a person holding such an attachment in execution proceed to a sale in execution of his decree; or are there other conditions to fulfil? Chapter XIX deals with execution generally, and I turn to it for the answer to this question. Section 223 says: 'A decree may be executed under the provisions hereinafter contained,' i.e., contained in Chapter XIX. Section 230 next says: 'When the holder of a decree desires to enforce it, he shall apply to the Court which passed the decree or to the officer, if any, appointed in this behalf.' This section does not reserve or except a case arising under Section 490. It applies to all holders of decrees. Section 235 says that the application shall be in writing, and shall contain certain particulars-ten in number-among which ranks 'the mode in which the assistance of the Court is required, whether by delivery of the property, or by arrest and imprisonment, or by attachment of property.'
4. Now, Section 490 already has given such attachment to the decree-holder. So that in a case under Section 235, when attachment of property is the mode of assistance required, the application for execution at first sight would seem unnecessary. But other particulars are also required by the section, such as, for instance, whether an appeal has been filed-whether there has been any adjustment since decree, and whether there has been any previous application for execution. These requirements are evidently treated as essential; for Section 245, in substance, says that if the requirements of Section 235(amongst others) are not Complied with, the Court may reject the application; and Section 245 goes on to say that the Court will only order execution of the decree after the application has been admitted. Then, lastly, Section 295, which deals with the rateable distribution of assets, says they shall be divided rateably among all persons who have, prior to the realisation, applied to the Court for execution. Reading these sections together, their meaning is quite clear on the point in question; and the construction suggested by the learned Advocate General would, in my opinion, be a departure from that meaning. I am, therefore, forced, somewhat reluctantly, to the conclusion that an application for execution is necessary before Section 295 can include the case, under Section 490, of the holder of an attachment before judgment; until he has made his application he only holds a security, which may be destroyed by the interposition, after decree has been given, of a jus tertii. It seems hard that a person who holds an attachment in execution should not rank pari passu with other judgment-creditors. But the law lays down a certain procedure as a condition precedent to the right of any decree-holder to rateable distribution, which the others have followed, and he has not.
5. I must, therefore, reject this application. I may add, that this decision is supported by the practice of the Court for the last eleven years. There have been no decisions which directly settle the question; none, that is to say, with reference to Section 490, as bearing upon Section 295. But there are decisions which show that the observance of the rules of procedure laid down in the chapter on Execution in the Code is essential to a claim for rateable distribution-Tiruchittambala Chetti v. Sheshayyangar I.L.R., Mad., 383 ; Vishvanath Maheshvar v. Virchand Panachand I.L.R., 6 Bom., 16 .
6. I cannot hold that there was anything done by the applicants which could be regarded as an application for execution. The summons on the 17th December was taken out by the plaintiffs in Suit No. 358 of 1887, and the applicants only consented to the order made in that summons. That order for payment into Court was, no doubt, made in both suits, but that circumstance does not make their consent amount to an application for execution.