Chose and Brett, JJ.
1. The subject matter of this rule is an order of the Subordinate Judge of Tipperah, dated the 9th September 1899, calling for the record of a certain execution case from the file of the Munsiff of Brahmanbaria for the purpose of rateable distribution of the sale proceeds of a certain property, amongst certain decree-holders, one of the decree-holders being a person, who had obtained a decree in his (the Subordinate Judge's) Court, as also a subsequent order of the 19th February 1900 of the same officer determining the question of rateable distribution and ordering that certain of the decree-holders in the Brahmanbaria Munsiff's Court, who had, under the orders of the Munsiff, dated the 5th January 1900, taken out certain sums in excess of the amounts properly due to them, should refund the excess amount.
2. It appears that in execution of a certain decree or decrees, in the Munsiff s Court of Brahmanbaria, certain property belonging to the judgment-debtor, Ambica Charan, was attached for sale. The sale took place on the 24th August 1899. But before this event happened the decree-holder in the Subordinate Judge's Court, who had got the same property attached before judgment, obtained his decree, and this was on the 23rd August 1899. And on the 31st idem he applied to the Subordinate Judge for execution of his decree. That officer thereupon, on the 9th September 1899, sent down an order to the Munsiff of Brahmanbaria calling for the record of the execution case pending on his file for the purpose, as we have already indicated, of the distribution of the proceeds of the sale already held on the 24th August, between the decree-holder in his (the Subordinate Judge's) Court and the other decree-holders in the Munsiff's Court. The Munsiff, however, apparently out of mistake, instead of complying with the order of the Subordinate Judge, as he ought to have done, on the 5th January 1900, made a rateable distribution between the decree-holders of his own Court. Subsequently the Munsiff sent the record to the Subordinate Judge, who, on the 19th February 1900, as already mentioned, determined the matter of distribution between the decree-holder in his own Court and the various decree-holders in the Munsiff's Court, and finding that some of the decree-holders had obtained more money than they were entitled to receive, directed them to refund the amounts which they had obtained in excess of their legitimate dues under his distribution.
3. We might here mention that, upon the sale taking place on the 24th August 1899, the monies were realized on various dates. The whole amount would seem to have been realized on the 6th September 1899, that is to say, after the application that was made by the decree-holder in the Subordinate Judge's Court for execution of his decree, which was, as already mentioned, oil the 31st August 1899.
4. The learned Vakil for the petitioner, one of the decree-holders in the Munsiff's Court, who obtained this rule, has urged upon us that the Subordinate Judge had no authority to call for the record of the execution case in the Munsiff's Court for the purpose of distribution of the sale proceeds, and in the second place, he has contended that the Subordinate Judge's order of the 19th February 1900, distributing the sale proceeds amongst the various decree-holders, was also without authority, more particularly his order directing that some of the decree-holders in the Munsiff's Court should refund such sums as they had received in excess of their legitimate dues.
5. No question, we might here mention, has been raised as to the Validity of the sale in the Munsiff's Court. The sale having taken place in that Court, it must be taken to be a perfectly good Sale. The only question which we have to consider is as to the rateable distribution made by the Subordinate Judge, and the order that he passed calling upon certain decree-holders in the Munsiff's Court to refund monies.
6. Under Section 295 of the Code of Civil Procedure, 'whenever assets are realized by sale or otherwise in execution of a decree, and more persons than one have, prior to the realization, applied to the Court by which such assets are held for execution of decrees for money against the same judgment-debtor, and have not obtained satisfaction thereof, the assets, after deducting the costs of the realization, shall be divided rateably among all such persons.'
7. The decree-holder in the Subordinate Judge's Court is one of those persons, and he applied in proper time to the Subordinate Judge for obtaining a share of the money realized under the sale in the Munsiff's Court of Brahmanbaria.
8. Referring then to Section 285 of the Code, it will be found that 'where property not in the custody of any Court has been attached in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof, shall be the Court of highest grade, or where there is no difference in grade between such Courts the Court under whose decree the property was first attached.'
9. Now, although the attachment that was taken out by the decree-holder in the Subordinate Judge's Court was before judgment, still a decree having been subsequently obtained on the 23rd August 1899, the attachment that had already been put upon the property became operative, and upon such attachment being made operative, he stood in the same position in respect to the property attached as the decree-holders in the Munsiff's Court. That being so, the Subordinate Judge's Court was the only Court, having in view the provisions of the sections to which we have just referred, which could determine any claim to the assets realized by the sale in the Munsiff's Court. That is a view which we think is apparent on the face of Section 285 itself; and it seems to have been adopted in the case of Badri Prasad v. Saran Lal (1882) I. L. R. 4 All. 359., where the learned Judges amongst other matters observed as follows: 'Where the Courts are of different grades, the one upon which this duty,' that is to say, the duty of distribution under Section 295, 'devolves is that of the highest grade; where they are of the same grade, that which first effectuated the attachment.' And in another portion of the judgment they observed: 'It appears to us that, when several decrees of different Courts are out against a judgment-debtor, and his immoveable property has been attached in pursuance of them, the law contemplates, no matter whether such Courts be of the same or different grades, that one Court and one Court only shall have the power of deciding objections to the attachment; of determining claims made to the property; of ordering the sale thereof and receiving the proceeds, and of providing for their distribution under Section 295.' That being so, we think that after the Subordinate Judge had called for (as he had full authority to do) the record of the execution case from the file of the Munsiff on the 9th September 1899, for the purpose, of distribution of the sale proceeds, the Munsiff had no power to distribute the money amongst the decree-holders in his own Court. He ought to have at once sent up the record to the Court of the Subordinate Judge, for the purpose of a distribution being made by that officer in accordance with Section 295 of the Code. The Subordinate Judge, as we have already stated, upon receipt of the record from the Munsiff's Court, dealt with the matter of distribution, and made his order of the l8th February 1900. That is an order which was in perfect accordance with the provisions of Section 295 and 285 of the Code of Civil Procedure, and no objection could be taken to it.
10. But then the question arises whether the Subordinate. Judge had the authority to make the order that some of the decree-holders in the Munsiff's Court should refund the sums drawn by them in excess of what was legitimately due to them. It seems to us extremely doubtful whether he had such authority, because the Subordinate Judge was not then sitting in appeal against the order of the Munsiff, nor had he any revisional jurisdiction in respect of any order, which the Munsiff had made. However that may be, in order to remove any doubt or difficulty which may exist, we make the same order which the Munsiff, so soon as discovered the mistake that he had made, ought to have made, and which the Subordinate Judge has made in this matter.
11. The rule will accordingly be discharged. We make no order as to costs.
12. Rule discharged.