1. We are Invited in this Rule to set aside an order for rateable distribution of assets held by the Court below. The circumstances under which the order has been made are not in controversy and may be briefly stated.
2. The petitioner, Madhu Sudan Patitunda, on the 13th July 1914, instituted a suit against his debtor, Pranballabh Poddar, for recovery of money due. The suit was decreed on the 10th August 1914. Two days later the decree-holder applied for attachment of moveable properties belonging to his judgment-debtor. On the 17th August the attachment was effected anil the moveables were brought into Court. On the 4th September 1914, the Sens, who are the opposite parties to this Rule and were also creditors of Pranballabh Poddar, instituted a suit for recovery of money due from him. The Sens obtained an order for attachment before judgment in their suit and the attachment was effected on the 8th September 1914. The two suits were instituted before the same judicial officer, with this difference that in one case he exercised the powers of a Small Cause Court Judge and in the other that of a Munsif. On the 9th September 1914, the moveables were sold at the instance of Patitunda. The Sens obtained a decree in their suit on the 24th October following, and on the 10th November, they applied for execution of the decree they had obtained, by rateable distribution of the assets realised by the sale held at the instance of Patitunda. The question in controversy is, whether an order for rateable distribution can rightly be made. The Court below has held, on the authority of the decision in Butloo Khan v. Gomani Singh 3 Ind. Cas. 836 : C.W.NZ. 1177 that it is competent to the Court to allow rateable distribution in the events mentioned, and has ordered accordingly. That order is now challenged before us on the ground that it was made without jurisdiction.
3. It is plain that an order for rateable distribution cannot posssibly be made in this case under Sub-section (1) of Section 73 of the Code of Civil Procedure. That section applies only where an application for execution has been made before the assets have been realised. In the case before us, the assets were realised on the 9th September 1914. The application for execution by the Sens was not made till the 10th November 1914. In fact it was not competent to them to apply for execution on the 9th September 1914, when the assets were realised, as they did not obtain their decree till the 24th October 1914. It is thus indisputable that an order for rateable distribution could not be made in their favour under Section 73. The Court below, however, has held that Section 73 is not exhaustive and that it has inherent power to make an order of this description. In our opinion, there is no room here for the application of the doctrine of inherent powers of a Court which is recognised by Section 151 of the Code. We have here, not only an express provision of the law which admittedly does not cover the case of the Sens, we have also an express provision which negatives their claim, Rules 5 to 12 of Order XXXVIII of the Code deal with the subject of attachment before judgment. Rule 10 is in these terms: Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the Rule of the property under attachment in execution of such decree.' It is well settled, as was ruled by this Court in the cases of Sewdut Roy v. Sree Canto Maity 33 C. 639 : 10 C.W.N. 634; Basiram Malo v. Katyani Debi 10 Ind. Cas. 305 : 38 C. 448 : 15 C.W.N. 795 and Jogendra Nath Chatterjee v. Manmatha Nath Ghose 15 Ind. Cas. 668 : 16 C.L.J. 566 : 17 C.W.N. 80 that attachment before judgment does not, by itself, create any interest in the property attached. In the case before us, in view of the provisions of Rule 10 of Order XXXVIII of the Code it was manifestly open to the petitioner to apply for sale of the properties attached by him in execution of his decree and his right in this respect was in no way restricted by the attachment before judgment effected at the instance of the Sens. In our opinion, it is perfectly plain that the Court below was not competent to make an order for rateable distribution. The decision in Butloo Khan v. Gomani Singh 3 Ind. Cas. 386 : 13 C.W.N. 1177 is clearly distinguishable. In that case, the attachment before judgment had been effected at the instance of four plaintiffs. Three of them obtained an order for rateable distribution under Section 73 of the Code; the fourth challenged the propriety of that order. It was ruled by this Court that Section 73 did not apply to the case and that the Court below was not competent to make an order for rateable distribution of the sale-proceeds amongst the decree-holders in three of the suits in disregard of the order of attachment in the other suit. In that case, the four rival decree-holders were precisely in the same position, and yet it was held, at the instance of one of them, that the oilier three could not claim the benefit of Section 73. In the case before us, there is a competition between an attachment effected in execution of a decree and an attachment before judgment. The distinction between these two classes of attachments was explained by this Court in Basiram Mala v. Katyani Debi 10 Ind. Cas. 305 : 38 C. 448 : 15 C.W.N. 795 which is an authority for the proposition that a person who has obtained an attachment before judgment cannot restrict the rights of an attaching creditor who has previously obtained his decree. The case of Jogendra Nath Chatterjee v. Manmatha Nath Ghose 15 Ind. Cas. 668 : 16 C.L.J. 566 : 17 C.W.N. 80 further shows that a person who has effected an attachment before judgment is not competent to apply for reversal of an execution sale under Rule 90 of Order XXI of the Code; and the express provision of that rule shows that, in this respect, a person who is entitled to obtain an order for rateable distribution is in the same category as a person whose interest has been affected by the sale. The conclusion appears to us irresistible that the order of the Court below cannot possibly be supported.
4. This, indeed, has been fully realised on behalf of the opposite party, and the only argument seriously addressed to us has been that the order of the Court below involves an error of law and cannot consequently be revised under Section 115 of the Code of Civil Procedure. There is obviously no force in this contention. The order of the Court below is, no doubt, erroneous in law; but the error of law has induced that Court to assume a jurisdiction which it did not possess. It is unquestionably competent to this Court to interfere with an erroneous order of a Subordinate Court, when as a result of that order, though erroneous in law, that Court has assumed a jurisdiction which it did not possess or declined a jurisdiction which was vested in it by law: Manuha v. Siyali Koya 1 M. 220; Vishvambhar v. Vasudev 16 B. 708; Jogodanund v. Amrtia Lal 22 C. 767 at p. 783.
5. The result is that this Rule is made absolute and the order for rateable distribution made by the Court below discharged. The petitioner is entitled to his costs both here and in the Court below. We assess the hearing fee in this Court at two gold mohurs.