1. The learned Judge of the City Civil Court has found that the petitioner is entitled under Section 295 of the Code of Civil Procedure to rateable distribution but has refused his application therefor on the ground that there is other property of the debtor which, though not yet realized by execution in the Court, may be made available for the satisfaction of his claims: relying on Madden v. Chappani 11 M. 356 he has referred, the petitioner to a separate suit.
2. I have no doubt that this order is one which can be revised under Section 622 of the Civil Procedure Code: that is established by Tiruchittambala Chetti v. Seshayyangar 4 M. 383 and Viraraghava v. Parasurama 15 M. 372. Here the learned Judge has declined jurisdiction holding wrongly as I think that he has a discretion so to do. Section 295 does not give such a discretion; it does not permit the Judge in his discretion to refuse to a party, who to his knowledge is entitled to relief under the section, the relief to which he is entitled. The decision in Madden v. Chappani 11 M. 356 does not illustrate the circumstances in which a Judge would be justified in referring a party to a suit, but I imagine that they would be circumstances in which there might arise a question whether there was a right in one or other of the parties to the relief for which the section provides. Here there is no such question.
3. Then it is said that because there is a remedy by suit I should not interfere. I do not depart from the view to which I have recently given expression that, where a party has a remedy elsewhere than in the High Court, the High Court should not except in special cases interfere under Section 622.
4. But here we have a case in which there is no doubt as to the rights of the parties, and no remedy if I do not interfere, except by a suit to which there can be no defence and which, therefore, would merely multiply proceedings.
5. In such a case the lesser evil, at any rate is interference under Section 622.
6. I set aside the order of the learned Judge and direct him to make a fresh order according to law.
7. The respondent will pay the appellant's costs of this petition.