1. I will assume that the District Munsif was right in holding that the respondent's application before him, dated 18th January 1911 was an execution petition, satisfying the requirements of Order XXI Rule 11 Clause (1).
2. It seems to me however that the District Munsif could not in that case make an order for rateable distribution under Section 73 of the Civil Procedure Code.
3. He has omitted to notice that an order for rateable distribution under that section can be made only in favour of one who prior to the receipt of the assets in Court has applied to the Court for execution of his decree. In this case the assets were received in Court (at the instance of the present petitioners), on the 9th January 1911. The application for rateable distribution by the present respondent was not made till the 18th January 1911. See Krishnasankar v. Chandrasankhar I.L.R. (1880) B. 198 Be joy Singh Dhuduria v. Hukum Chand I.L.R. (1902) C. 548. Durga Churn Rai Chowdhury v. Manomani Dasi I.L.R. (1888) C. 771 These decisions were given under the Act of 1882 but the Act of 1908 has made no material alteration on this point.
4. Again an application for rateable distribution cannot be made unless the assets are received by the same Court as that to which the application is made. Krishna Sankhar v. Chandrasahkhar I.L.R. (1880) B. 198 The decree of the applicant for rateable distribution must either have been passed by the same Court which has received the assets sought to be rateably distributed or if that Court has not initially passed the decree then there must be a transfer of the decree to that Court; Mukaligiri v. Muttayyar I.L.R. (1883) M. 357 Nimbaji Tulariram v. Vadia Venkati I.L.R. (1892) B. 683. In this case the assets were held by the Court of the District Munsif in his ordinary jurisdiction; and the applicant for rateable distribution had a decree in his favour passed by the District Munsif in exercise of his jurisdiction as a Small Cause Court. In such a case the two decrees have been considered to be passed by two distinct Courts. The Small Cause Court Judge in his more limited jurisdiction on the one hand, and in his larger jurisdiction (of Munsif) on the other fills two distinctly different judicial characters.' Himalaya Bank v. Hurst I.L.R. (1881) A. 710 .
5. The order of the Lower Court is reversed and the petition is allowed with costs.