1. The question for consideration in this rule is whether or not a deposit made by a judgment-debtor for the purpose of setting aside an execution sale under Order 21, Rule 89, Civil P.C. can be regarded as an asset liable to rateable distribution under Section 73 of the Code. It was so held by the learned Munsif- but the contention of the decree-holder petitioner is that the deposit was specifically earmarked for payment to him and that, in these circumstances, it cannot be governed by the provisions of Section 73, Civil P.C. The expression 'assets' in Section 73 of the Code clearly includes assets held by the Court, the ultimate purpose of which is to satisfy decrees outstanding against a judgment-debtor. The source from which such assets originated appears to be immaterial provided they are in the custody of the Court. It was held by this Court in Hari Saha v. Faizlar Rahman (1913) 40 Cal 619 that, although money paid into Court under Order 21, Rule 89 might be regarded as assets under Section 73 of the Code, it was not available for rateable distribution because it was specially paid for the benefit of a particular decree-holder and the Court had no jurisdiction to utilize the money for any other purpose. This principle does not appear, however, to have been followed by Rankin J. in Nur Mahomed Dawood v. Bilasiram Thakursidass (1920) 7 AIR Cal 785 in which he was dealing with a similar question under Order 21, Rule 55, Civil P.C. In his judgment in that case, the learned Judge made the following observations:
The money, paid with whatever motive, if paid to the Court, is paid upon terms of the Code whatever they may be. These terms, as I read Section 73, have been laid down so that distinctions in the form in which execution has been had, in the precise extent to which execution has been allowed to run, in the exact source or genesis or the fund in Court, are now no part of the definition of the assets that are subject to distribution rateably.
2. More recently the case law on the subject has been fully reviewed by the Patna High Court in Bhattoo Singh v. RaghuNandanProsad Singh (1933) 20 AIR Pat 303 and with the views of the learned Judges in that case we incline to agree. We are doubtful whether Hari Saha's case cited above has been rightly decided but having regard to the merits of this particular application we do not think it necessary to decide this question of law. We do not think that this is a suitable case for the exercise of the discretion of this Court under Section 115, Civil P.C. The rule must therefore be discharged. We make no order as to costs.
S.K. Ghose, J.
3. I agree.