1. [His Lordship after setting out the facts as stated above proceeded:] It has been urged on behalf of the applicant before us that the assets were held by the First Class Subordinate Judge, and before the receipt of the assets in question he had applied to the Court for execution of the decree for payment of the money passed against the judgment-debtor within the meaning of Section 73 of the Code. In short the applicant's contention is that the assets were received for the purposes of Section 73 of the Code by the First Class Subordinate Judge at Dharwar when the money was actually sent by the Hubli Court to the Dharwar Court in pursuance of the order made by the Hubli Court.
2. On behalf of the opponents who have appeared before us, it has been urged that having regard to the provisions of Section 63 of the Code, the Court at Hubli really received the amounts for and on behalf of the Court at Dharwar and held them as agent or trustee for the Dharwar Court after the Court at Dharwar intimated to the Court at Hubli that opponent No. 1 was claiming rateable distribution in the amount that would be realised by that Court. In support of this contention the decision in Dattatraya v. Pundalik : (1920)22BOMLR1001 has been relied upon, and it is urged that just as the receipt of the money by the Collector in that case was held to be receipt by the Court within the meaning of Section 73 of the Code, similarly here the receipt of the assets by the Hubli Court should be held to be receipt by the Dharwar Court within the meaning of Section 73, Civil Procedure Code.
3. We have considered the arguments urged on both sides. We have also called for the necessary papers to know exactly what the nature of the communication by the First Class Subordinate Judge at Dharwar in Darkhast No. 123 of 1923 was, in order to be able to deal with the contentions of the parties. The position of the Collector, to whom a decree is transferred for execution, with reference to the Court which has transferred its decree for execution to the Collector, is regulated by the provisions of the Code of Civil Procedure including the provisions of the Third Schedule of the Code. When the ratio decidendi of the case in Dattatraya v. Pundlik is examined, it would appear that the decision is not based upon the view that the Collector is an agent of the Court, but that the money received by the Collector under the provisions of the Code of Civil Procedure is distributable under the orders of the Court, and is held by the Collector subject to the orders of the Court. It is clear, therefore, that that case is quite different from the present case and that the decision is based upon the special provisions relating to execution of decrees by the Collector.
4. Mr. Coyajee for the opponents also relied upon the provisions of Rule 69 of Order XXI as indicating that the sale may be held not by the Court, but by an officer appointed by the Court to conduct such a sale, that in such a sale the money received by the officer would be money received by the Court, and that the date of the receipt would be the date of the receipt by the officer. I do not think that this rule can help the opponents in any way. That is a specific case of the Court holding a sale through its officer, and it is not necessary for the purposes of this application to determine as to what the date of the receipt would be in a given case under Rule 69. But even assuming in favour of the opponents that the date would be as indicated in the argument, it could not help us in determining as to what is the proper date of the receipt of the assets within the meaning of Section 73 of the Code under the circumstances of this case.
5. In considering that point it is necessary to refer to Section 63, Civil Procedure Code, which provides as follows:-
(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade...
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.'
6. In the present case, it was the Court at Hubli that held the sales in execution of the decrees passed by that Court and received the amounts. It is true that before the amounts were received, the properties had been under attachment in execution of the decree of opponent No. 1 in the Dharwar Court, which was the Court of superior grade with relation to the Hubli Court, and the fact was intimated to the Court at Hubli. that opponent No. 1 was claiming rateable distribution of the amounts that might be received. It is also true that, if the Court at Dharwar was minded to exercise the power which wag vested in it under Section 63 of the Code, it could have proceeded to effect the sale itself and to receive the sale proceeds. But the intimation by the Court at Dharwar merely that opponent No. 1 was claiming his share in the rateable distribution was not by itself sufficient to alter the nature of the proceedings before the Hubli Court. That Court was acting on its own account, and was executing its decrees. It held the assets on its own account when they were received, and it cannot be said that when the amounts were received, they were received by that Court as agent or trustee of the Court at Dharwar. In fact the Dharwar Court never purported to or intended to exercise the powers vested in it under Section 63, Sub-section (1), of the Civil Procedure Code ; and, until the assets came to be transferred to the Dharwar Court as liable to be distributed by that Court, it is difficult to see how the assets could be said to have been received within the meaning of Section 73 of the Code by the Court entitled to make the rateable distribution. The question as to whether the money must be treated to have been received after this Court finally communicated to the Dharwar Court its order transferring the sale-proceeds and the Darkhasts from the Court at Hubli to the Court at Dharwar or when the money was actually received by the Dharwar Court, may be open to argument. But in the present case whether we take the date of the communication of the order of this Court as the date on which the Dharwar Court received the assets within the meaning of Section 73 of the Code, or whether we take the actual date on which in pursuance of that order the Hubli Court actually sent up the sale-proceeds to that Court as the date of the receipt> the present applicant is one of the persons entitled to rateable distribution, as he had in fact applied to that Court in April 1925 and his application was then pending.
7. It is true that there is no express provision of the Code as to whether the money received by the Court at Hubli in execution of its decrees, could be said to be held on behalf of the Court of superior grade like the Dharwar Court in this case, on the ground of the power to receive or realise the property under attachment having been given by Section 63 to the Court of superior grade. Sub-section (2) of Section 63 suggests that the power of the Court of inferior grade is not altogether negatived and at any rate it does not support the theory of agency or trust on behalf of the superior Court. The procedure to be followed in such cases is indicated by decided cases like Patel Naranji Morarji v. Haridas Navalram I.L.R. (1893) 18 Bom. 458 and Deekappa v. Chanbasappa. I.L.R. (1925) 49 Bom. 655 It may be that if the First Class Subordinate Judge at Dharwar had made the order, which apparently he had made on the application of Deekappa in the first instance as pointed out in the report of the case at p. 659, the assets might have been received earlier by that Court; and, as pointed out in the same judgment at p. 661 of the report, such an order may be sufficient and the procedure of applying for transfer may not be necessary. But whichever course is adopted, the money is received by the Court of superior grade when such an order or the order of transfer takes effect, and definitely takes away the amount from the hands of the Court of inferior grade which has in the first instance received it on its own account, and which continues to hold it in that capacity until it is definitely appropriated to the use of the Court of superior grade by a proper order to that effect. On the facts of this case the money was received by the Dharwar Court within the meaning of Section 73, Civil Procedure Code, after the darkhast No. 47 of 1925 was filed by the present applicant.
8. In this view of the matter it is clear that the order of the lower Court on the basis that the amounts were received on the dates on which they were received by the Hubli Court must be set aside and that that Court should be directed to make a redistribution on the basis of the view which we take in this case.
9. This might entitle some of the applicants before the Dharwar Court for rateable distribution, who have not applied to this Court for revision of that order, to claim their shares at the fresh rateable distribution. That is a matter which must be dealt with by the lower Court. I would accordingly make this Rule absolute, set aside the order passed by the First Class Subordinate Judge at Dharwar as regards the rateable distribution, and direct that Court to redistribute the amounts on the basis of the date of the receipt of the assets as indicated in this judgment within the meaning of Section 73 of the Code of Civil Procedure. The applicant to get the costs of this application from the opponents.
10. I agree in the conclusion and the main reasoning of my learned brother's judgment. The present case is quite a different one from that of Galstaun v. Woomes Chandra Bonnerjee I.L.R. (1916) Cal 789 which was a case of a sale by a person appointed by the Court under Rule 65 of Order XXI, Civil Procedure Code. In such a case the receipt by that person was obviously a receipt as an agent of the Court, and so a receipt by the Court. Visvanadhan Chetty v. Arunachelam Chetti I.L.R. (1920) Mad. 100 was referred to, but that merely rules that there must be an actual transfer of assets to the credit of the suit concerned, and it does not really help in the present question. In fact it does not deal with a case like the present. The Hubli Court can only be regarded as an agent of the Dharwar Court, if in fact it was either an agent, as defined in Section 182 of the Indian Contract Act, or an agent under the general law in regard to agency. Under this latter law, as stated in 'Bowstead on Agency,' 7th Edition, p. 16, the Hubli Court could be an agent, if 'the relationship of principal and agent [was] constituted...by implication of law from the conduct or situation of the parties, or from the necessity of the case.' But it certainly cannot be said here that that relationship was established. There was nothing which indicated to the Hubli Court that it was in fact acting as an agent of the Dharwar Court, at any rate until the decision in Deekappa v. Chanbasappa I.L.R. (1925) 49 Bom. 655 was communicated to it by this Court. Nor can it be said that the money realised by the sale of the attached property was received by it under circumstances that gave it notice that it was money received on account of the Dharwar Court, or under circumstances that could fairly impute to it knowledge that the moneys were those of the Dharwar Court, to use the language of the judgment in Texas Company, Ltd. v. The Bombay Banking Company. I.L.R. (1919) 44 Bom. 139
11. Consequently, I think, the application should be allowed and the order proposed by ray learned brother be passed.