1. This is a plaintiff's appeal and arises out of a suit for recovery of Rs. 450 from defendant 1, Sita Ram. The facts very briefly are these. There were three decrees against defendant 2, Mr. E.B. Albert, who was employed as a guard in the East Indian Railway. The first two decrees, No. 100 of 1935 and No. 121 of 1936, were held by defendant 1, Sita Ram. The third decree No. 1203 of 1936, was held by the appellant, Ram Autar. The first two decrees were decrees of the Court of the Munsif of Saharanpur. The third decree was a decree of the Court of Small Causes, Moradabad. It is conceded that the decree-holder has realised his decree No. 100 of 1935 in its entirety. We are thus left with the two decrees No. 121 of 1936 of the Court of the Munsif of Saharanpur and No. 1203 of 1936 of the Court of Small Causes, Moradabad. There was rivalry in execution between the two decree-holders and we are concerned with the respective rights of both. Sita Ram made an application before the Munsif of Saharanpur for attachment of the salary of Mr. Albert in execution of his decree No. 121 of 1936. This application was made at Saharanpur. A little later Ram Autar made an application for attachment in his decree No. 1203 of 1936 at Moradabad. This application for execution by Ram Autar proved infructuous, inasmuch as it offended against the provisions of Order 21, Rule 48, which enjoins that
where the attachable proportion of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the Government in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.
2. Mr. Albert was getting a salary of about Rs. 300. The result of the failure of the application by Ram Autar was that Sita Ram's decree No. 121 of 1936 was being satisfied by regular monthly payments. After the payment in July 1936 only a sum of Rs. 8-8-0 remained due on account of that decree, with the result that in August 1936, after deducting a sum of Rs. 8-8-0 the Court at Saharanpur remitted the balance of the sum attachable to the Court at Moradabad. On 4th September 1936 Sita Ram applied to the Court of Small Causes at Moradabad, after having had his decree transferred to that Court, for rateable distribution. The application was vitiated by some legal defect, which has not been pointed out to me, but which I take it, was fatal to it, and that application remained a dead letter. On 7th September 1936 there was a compromise between the judgment-debtor, Mr. Albert, on the one side and Ram Autar the appellant before me, on the other. It provided that the judgment-debtor was to pay to Ram Autar a sum of Bs. 65 a month. It might be mentioned that it has been agreed between the parties before me that the attachable proportion of the allowance or salary of Mr. Albert was in excess of Rs. 65 that is to say the compromise in no way offended against the provisions of the law when it guaranteed the payment of Rs. 65 a month to Ram Autar. On 8th September 1936 Sita Ram applied for correction of his application. The Court passed the following order on this application:
From the report of the office it is clear that the execution case No. 1203 of 1936 has as a result of the compromise, been struck off, and the decree-holder may take such legal steps as he deems proper.
3. On 10th September 1936 Sita Ram made a fresh application for execution. He prayed that his execution may be proceeded with after deducting Bs. 65 a month, the sum which was paid under the compromise to Ram Autar. The proceedings remained in an unsettled condition for a long time. Sita Ram was playing a dual game. At Saharanpur he prayed that no portion of the money should be sent to Moradabad in satisfaction of the decree of Ram Autar. At Moradabad he off and on pressed his prayer under Section 73, Civil P.C., for rateable distribution. On 4th March 1937 Sita Ram got his application at Moradabad for rateable distribution definitely struck off but very soon after, that is on 3rd June 1937 he renewed his prayer at Moradabad for rateable distribution. Ram Autar took exception to this prayer on the ground that the compromise had guaranteed him payment of Rs. 65. It was a mere accident that the judgment-debtor had not the money in his hands and no payment had upto that moment been made to him, but he argued, the sum which was left in the hands of the railway authorities must be deemed to be his money inasmuch as so far as Mr. Albert was concerned, he had agreed to pay that money to him. It might be mentioned here that the sum which had actually been left in the hands of the railway authorities represented the amount due to Ram Autar from 7th September 1936 the date of the compromise, to 5th July 1937 the date when the money was received by the Court at Moradabad from the railway officials. Despite the objection of Ram Autar, the Court at Moradabad directed payment of Rs. 391-13-0 to Sita Ram. It is this order of 5th July 1937 which has been challenged by Ram Autar by his suit which has given rise to this second appeal. The learned Munsif, as also the learned Civil Judge in appeal, dismissed the suit. The Munsif framed the following issues : (1) Is defendant 1 not entitled to rateable distribution? (2) Is the suit time-barred'? (3) To what relief is the plaintiff entitled.
4. He tried issues 1 and 8 together and came to the finding that there was no legal bar to defendant 1 claiming rateable distribution. Issue 2 was not pressed before him and need not detain us. The plaintiff has come before me in second appeal. Mr. Baleshwari Prasad, the learned Counsel for the respondents, has raised a preliminary objection to the hearing of the appeal. The argument is that the claim was only for recovery of money, less than Rupees 500 and Section 102, Civil P.C., shuts out a second appeal. Article 26, Schedule 2, Provincial Small Cause Courts Act, furnishes a sufficient answer to this and the preliminary objection may be dismissed from further consideration. Coming to the merits of the case, it is clear that Section 73, Civil P.C. has, in the circumstances of the case, no application. It says:
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....
The application in a case like this must be a subsisting application : vide N.M.L. Chettiar Firm v. Official Assignee ('35) 22 A.I.R. 1935 Rang. 135. There can be no doubt that on 4th March 1937 Sita Ram got his application for execution struck off. I am aware of those cases where applications for execution have in certain circumstances, although they have not materialised been treated as subsisting applications; but those are cases where for no fault of the party the Court has consigned it to the record room, as for instance the case in Bhan Datt v. Tulsa Kunwar : AIR1940All151 . But where as here, the party himself has got his application for execution struck off, it has been held that if the execution Court intended to finish the matter which was pending before it and to dispose of it, then the application cannot be deemed to remain alive : vide Mohammad Taqi Khan v. Raja Ram : AIR1936All820 . In this case I think that, as the decree-holder wanted his application for execution to be struck off it does not lie in his mouth to say that this 'application remained a pending application.
5. Another point has been argued by the learned Counsel for the respondent. He says that if there was no application pending on 3rd June 1937, he was entitled to the whole of the money. The short answer to this argument is that if by arrangement on 7th September 1936 Mr. Albert decided to pay Rs. 65 a month to the appellant at a date when there was nothing to prevent him from so doing, the subsequent conduct of the parties should not affect the rights of Ram Autar. On a consideration of all the facts it appears that the application of 3rd'June 1937 by Sita Ram was a misguided application. At any rate, it ought not to be allowed to make any inroads upon the rights of Ram Autar, such as had been assured to him under the compromise of 7th September 1936. I, therefore, allow the appeal, set aside the decrees of both the Courts below and decree the plaintiff's suit. The parties will bear their own costs throughout. Leave to appeal under the Letters Patent is refused.