1. This Rule raises a question under Section 73 of the Civil Procedure Code.
2. On the 7th August 1920 the petitioner filed an application for the execution of a decree for money which he had obtained against Hazarimul Toddi, the opposite party No. 3, referred to hereafter as the judgment-debtor.
3. Meanwhile, in another suit brought against the judgment-debtor by the opposite party Nos. 1 and 2, certain property belonging to him had, under Order XXXVIII, been attached before judgment and then released on the petitioner furnishing security for the sum of Rs. 250, representing the amount of the claim in the suit and costs. Two persons stood as sureties for the judgment-debtor for the payment of that amount.
4. On the 30th July 1920 the opposite parties Nos. 1, and 2 obtained la decree. On the 4th August they applied for execution and on the 7th August 1920 the, sureties deposited the amount of Rs. 250 in Court.
5. The petitioner's application for execution was also made on the 7th August, as I have said. The Munsif says that the application was made just before the money Was paid in, or, in other words, before the receipt to the assets by the Court.
6. The question which arises is, whether the sum so deposited is 'assets held by a Court' within the meaning of Section 73 and, therefore, liable to be rateably distributed under that section. The learned Munsif answered this question in the negative and refused the petitioner's application for rateable distribution. The order is dated the 18th August 1920. On the 28th September 1920 the amount deposited was paid out to the opposite parties Nos. 1 and 2 on the condition that they would refund the amount in the event of the order rejecting the petitioner's application for rateable distribution being reversed by the high Court. The petitioner obtained this Rule on 19th November 1920 on the re-opening of the Court after the long vacation.
7. The effect of Section 73 of the Code has been considered in more than one case. In Hari Saha v. Faizlar Rahman 18 Ind. Cas. 839 : 40 C. 619 : 17 C.W.N. 636 : 18 C.L.J. 144 : 19 C.W.N. 1125 Stephen, J. and D. Chatterjee, J. held that money paid into Court under Order XXI, Rule 89, for the purpose of setting aside a sale in execution could not be rateably distributed inasmuch as the Rule expressly requires the deposit to be made for payment to the purchaser and the decree-holder. The learned Judges however, took occasion to observe that the scope of Section 73 was far wider than that of the corresponding provision contained in Section 295 of the old Code.
8. The learned Pleader for the opposite parties Nos. 1 and 2 has relied on the decision of the Bombay High Court in Sorabji Coovarji v. Kala Raghunath 12 Ind. Cas. 911 : 36 B. 156 : 13 Bom. L.R. 1193 where it was held that property having been attached is execution of a decree, money paid in under Order XXI, Rule 55, for the purpose of removing the attachment by satisfying the decree was not subject to rateable distribution. The learned Judges were of opinion that Section 73 was only applicable to 'assets held in the process of execution.'
9. For the petitioner reference was made to Thiraviyam Pillai v. Lakshmana Pillai 47 Ind. Cas. 538 : 41 M. 616 : 35 M.L.J. 150 : (1918) M.W.N. 524. There a judgment-debtor had been authorized under Order XXI, Rule 83 to make a private alienation of property attached in execution of a decree and had paid in the money under that Rule to satisfy the decree. The Court allowed rateable distribution and Seshagiri Aiyar, J., speaking for himself and Napier, J., said this: 'A significant change has been made in the language of Section 73 of the present Civil Procedure Code. In the old Code, the words were 'whenever assets are realized by sale or otherwise in execution of the decree.' In the present Code, the words are 'where assets are held by a Court.' The change was apparently intended to set at rest the question whether the word realization should not be restricted to what is paid in by virtue of process taken in execution; but apparently the legislature has not succeeded in the object. There can be no question that the language of the present Code is wide enough to cover cases where monies are in the hands of the Court by whatever process the same has been realized. It is true that the learned Judges of the Bombay High Court hold that, even under the new Code, the money to be held by the Court must have reached its hands in execution.' The learned Judges then referred to the case of Sorabji Coovarji v. Kala Raghunath 12 Ind. Cas. 911 : 36 B. 156 : 13 Bom. L.R. 1193 and another case and continued: 'It is not necessary to express an opinion on this question as we are of opinion that when permission is granted under Order XXI, Rule 83 to raise money by private alienation the money is paid under a pending execution application'.
10. The Bombay ruling, therefore, was distinguished rather than dissented from but the view which the Court was disposed to take is sufficiently indicated by the observations which I have quoted and by the further observations which occur later in the judgment. 'The policy of the Legislature,' it was said, 'seems to be to bring all monies realized at least in process of execution to the hotchpot to be shared by all the decree-holders. It is analogous, to distribution on an insolvency.' Then, after referring to Order XXI, Rule 72, where Section 73 is expressly mentioned, the judgment goes on: 'The intention of the legislature, is to afford every creditor equal opportunities of obtaining a rateable advantage in the available assets of the judgment-creditor.'
11. These observations encourage me to adopt what I regard as the natural interpretation of the wide language of Section 73. I see no reason why the words 'assets held by a Court' should receive a narrow or limited -construction, or speaking generally and apart from any express provision applicable to a particular case, why the words should not apply to any assets in the possession of the Court and at the disposal of the Court for the purpose of satisfying a decree obtained against a judgment-debtor.
12. The assets in question in the present case may not, strictly speaking, have been realized in process of execution, but they were realized by a process in the nature of an anticipatory execution Order XXXVIII, Rule 7, states in terms that 'save as otherwise expressly provided the attachment (before judgment) shall be made in the manner provided for the attachment of property in execution of a decree.' Order XXXVIII, Rule 10, shows that, the Legislature did not intend that attachment before judgment should restrict the rights of persons holding decrees against the defendant.
13. The result is that, in my opinion, the learned Munsif erred in refusing to allow rateable distribution in respect of the money here in question.
14. I have considered whether this is a case in which I ought to interfere under Section 115 of the Code. The Rule was obtained on the footing that the learned Munsif declined to exercise a jurisdiction vested in him. The Code confers no right of appeal from the Munsifs order and it has been pointed out at the Bar that the practice of this Court has been to deal with cases such as the present under the powers conferred by Section 115. I am not, therefore, in any way initiating a new practice when I reverse the order of the learned Munsif and substitute therefor an order that the application for rateable distribution should be allowed and the case sent back to the Munsif for the purpose of doing what further may be necessary. It may be that if the money had been paid off to the opposite parties Nos. 1 and 2 without any undertaking on their part to refund it in whole or in part, I should not have interfered. But as they gave the undertaking and as I am told that the property which was attached before judgment is not now available, I have the less hestitation in making the Rule absolute in the sense I have indicated.
15. The parties will bear their own costs.