1. This is a second appeal in which a point of law has been raised on which there does not appear to have been any precedent and no ruling has been shown to me corresponding to the circumtances of this case. The plaintiff held a decree against defendant 2, and defendant 1 also held a decree against defendant 2. There was a sum of money, Rupees 1,000 belonging to defendant 2 deposited in the Court of the Magistrate. The decree of the plaintiff was for Rs. 1,010 and the decree of defendant 1 was for Rs. 451. Each party desired to obtain satisfaction for their share from the sum of Rs. 1,000 deposited in the Magistrate's Court. The question in issue in the present case is in regard to Rs. 451 out of that deposit which is claimed by defendant 1. Actually he did not receive payment of that sum until the present suit had been decreed in his favour by the Court of the Munsif on 7th May 1930, The case for defendant is that he obtained the proprietary title in this money by an order of 18th December 1929. This was the date of the decree in his suit and defendant 2 made a statement to the Court to the effect that Rupees 451 of the deposit might be sent for and might be given to defendant 1. The order of the Court in passing the decree was:
Let Rs. 451 be requisitioned by means of a robkar and paid to the plaintiff on an application by the latter.
2. Two days later, on 20th December 1929, the plaintiff attached the same sum of Rs. 1,000 in its entirety and his suit was decreed on 16th January 1930. Various arguments have been made to me in regard to procedure and it has been argued that the procedure of the defendant was not so regular as the procedure of the plaintiff because the plaintiff made a regular application for execution and the defendant did not. I do not think that the case can be decided on those lines. This is a question between rival decree-holders and the section which deals with this question is Section 73, Civil P. C., which 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 passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be ratably distributed among all such person.
3. The language of this section does not exactly cover the present case because when the decrees were passed the property was in the Court of the Magistrate and the money was still in the Court of the Magistrate when the order was passed by the Additional Munsif's Court on 18th December 1929 and on the plaintiff's application for execution by the Court of the city Munsif on 18th January 1930. It was not until 31st January 1930 that the money was received in the Court of the Additional Munsif from the Court of the Magistrate. Learned Counsel for defendant 1 has argued that as a result of the proceedings on 18th December 1929 the proprietary right in the Rs. 451 passed to defendant 1. He bases this argument on a statement of defendant 2 on that date that he was willing that Rs. 451 should be sent for from the Court of the Magistrate and paid to defendant 1. I do not find that Section 78, Civil P. C., proceeds on any such point. It does not take into account at all whether payment orders have been passed for the different decree-holders who have decrees against the same judgment-debtor. All that the section considers necessary are that assets should be held by a Court and that more persons than one have made applications to the Court for the execution of decrees. No doubt it is not shown that defendant 1 bad made an application, but there were the proceedings already mentioned of 18th December 1929. The case appears to me to come under Section 73 in principle and the principle of that section should apply and rateable distribution should be made between the rival decree-holders. The mere fact that the Additional Munsif had order, ed the payment if an application was made and when the money was received in favour of defendant 1 does not appear to me to be a consideration which should bar the rights of the plaintiff to rateable distribution. One decree, holder is not a party to the execution proceedings of a rival decree-holder and therefore orders passed in such execution proceedings should in no way bind him. The principle of the section is that as long as the assets are still held by a Court there should be rateable distribution. No authority has been shown to me to the contrary. For, these reasons I consider that it will be equitable in the present case to allow this appeal to the extent of directing rateable distribution. The plain tiff brought his suit claiming the entire sum of Rs. 451. I do not consider that he is entitled to a decree for the full amount of his claim. Accordingly I allow this second appeal with proportionate costs throughout, and I direct that the plaintiff's suit be decreed to the extent that the parties should have rateable distribution in the sum of Rs. 1,000 which was deposited, of defendant 2 to the extent of the decrees for plaintiff and for defendant 1. Permission is granted to both sides for Letters Patent Appeal.