1. This rule is directed against an order made by the 3rd Munsif, Chittagong, whereby he refused to vacate an order made by him making rateable distribution of some money which was lying in his Court. What happened in the case was this: There were some surplus sale proceeds lying in the Court of the Munsif. This property was attached by several decree-holders in execution of their decrees. The learned Munsif made a rateable distribution of the money in his Court. Soon after that distribution had been made, the petitioner who obtained the present, rule and who also was a decree holder wanted to attach the money in execution of his decree and in that application he asked the learned Munsif to vacate his order for rateable distribution which he had already made. This application however was rejected by the learned Munsif; and that refusal order has given rise to this present rule.
2. This rule should, in my opinion, succeed. The Court of the 3rd Munsif of Chittagong was only a custody Court and being a custody Court, under Order 21, Rule 52, Civil P.C., it had no authority to make any rateable distribution. Under that rule it could only determine the question of priority and thereafter act under the instructions of the attaching Court. The case of Thakurdas Motilal v. Joseph Iskender (1917) 44 Cal 1072 no doubt approves of a rateable distribution made by a custody Court. But in that case the custody Court happened to be the attaching Court as well, The order of the Munsif making a rateable distribution will therefore be set aside and the rule made absolute. There will be no order as to costs as there has been no opposition to the rule.
3. I agree.