1. This is a Rule calling on the holders of three decrees to show cause why an order of the Small Cause Court Judge at Howrah directing a rateable distribution among them to the prejudice of the petitioners should not be set aside.
2. It appears that on 11th December, 1908, Gomani Singh) filed a suit (No. 2087 of 1908 in the Howrah Small Cause Court) against Darshan Goalaandon 12th December 1908, attached before judgment certain buffaloes belonging to Darshan Goala. In that suit a decree was passed on 28th January 1909.
3. On 11th December 1908, Hossein Khan and Kalian Khan filed suit No., 2088 of 1908 in the same Court against the same defendant and on the 12th December attached before judgment the same buffaloes. They also obtained a decree on 28th January 1909.
4. On 15th December 1908, Khajir Khan and Umar Khan filed suit No. 2106 of 1908 in the same Court against the same defendant and on 16th December 1908 attached before judgment the same buffaloes. These plaintiffs obtained a decree on 22nd February 1909. On 15th December 1908, the Petitioners, Butlo Khan and Karim Khan, filed suit No. 2116 of 1908 in the same Court against the same defendant and on 16th December 1908 attached before judgment the same buffaloes. They obtained their decree on 23rd February 1909. Before any of the decrees were passed the buffaloes were for convenience sold and the proceeds Rs. 215 retained in Court.
5. By applications, dated 27th March, 1st April and 3rd April 1909, the three first-mentioned decree-holders applied for execution and by an order of 14th April the Small Cause Court Judge directed the fund in Court to be divided rateably among them completely ignoring the attachment of the petitioners. The moneys, however, were not at that time paid out and on 17th April the petitioners applied to be allowed to share rateably in the moneys in Court. This application was refused by the Small Cause Court Judge on 26th April 1909.
6. On 13th May 1909, the petitioners applied for and obtained this rule. Unfortunately no interim order of stay was asked for or given and on 15th May the moneys were paid out to the opposite parties.
7. It is conceded on both sides that Section 73, C. P. C, has no application to the present case inasmuch as no applications for execution had been made before the receipt of these assets. We think that the order of the Small Cause Court Judge giving preference. to the opposite parties and ignoring the attachment of the petitioners was clearly erroneous, as also his order refusing the petitioners' relief, when they preferred their application for execution. The sale-proceeds represented the buffaloes which had been attached and the Small Cause Court Judge was clearly wrong in disregarding his own order of attachment in the petitioners' favour, which order was still subsisting.
8. Though Section 73, C. P. C, does not apply, the Code contemplates rateable distribution. It would be necessary for the petitioners to apply for execution, but that it is admitted they did in this case, while the moneys were still held by the Court. See Sewdut Roy v. Sree Canto Maity 10 C.W.N. 634 : 33 C. 639. It does not appear why the Small Cause Court Judge granted rateable distribution to the holders of the other 3 decrees, whose applications for execution were made on different dates, and gave no intimation to the petitioners who were on precisely the same footing and whose attachment as we have said was still subsisting. It is to be regretted that the money have now been paid away.
9. We set aside the orders of the Small Cause Court, dated the 14th and 26th April 1909, and leave the petitioners to take such action as they may be advised to enforce a refund of their share of the moneys paid away. The petitioners must have their costs of this Rule, which we assess at 2 gold mohurs.