1. This is an appeal by the decree-holder against an order of the Court below dismissing the execution case as against the judgment-debtor No. 2 Asutosh Dey. The facts are rather complicated but they may be briefly stated thus: The property which was a Colliery belonged originally to one Satish Chandra Mittra, Mr. J. G. Galstaun obtained a decree against him and attached this Colliery on the 20th April 1919. On the 11th September, 1919, Satish mortgaged this property to the present appellant. The respondent to this appeal (the judgment-debtor No. 2 Asutosh Dey) took out several executions and attached this property. It was sold on the 4th July 1919 for Rs. 1,11,500 in Galstaun's execution case. On the 23rd July 1921, the appellant brought a money suit in the Asansole Court and caused attachment before judgment to be levied on the balance that might be left over after payment of Galstaun's dues. On the 30th July, 1921, the appellant brought a suit (No. 172 of 1921) on the mortgage executed in his favour on the 11th September, 1919, by Satish and caused the sale proceeds to be attached. The matter related to several attachments and came before the Court for consideration on 8th September 1921 which passed an order to the effect that after payment of the costs of execution and the amount due to Mr. Galstaun the balance would first be paid to the respondent who held five decrees against Satish in execution of which ho had attached the sale proceeds. These items together totalled Rs. 90,876. As regards the balance of Rs. 20,623 the Court passed the following order:
After paying the above amounts the balance be kept under attachment as follows: namely, Rs. 8,000 as directed by the Asansole Sub-Judge's Court and the balance in favour of the plaintiff of Suit No. 172 of 1921 as attachment before judgment.
2. As a result of this order Mr. Galstaun was paid off in full and all the five decrees held by the respondent were also satisfied in full. The appellant obtained a decree in the mortgage suit No. 172 of 1921 on the 12th December, 1921, and on the 14th December he withdrew Rs. 12,623 out of Rs. 20,000 in deposit in Court leaving a sum of Rs. 8,000 in deposit presumably for the satisfaction of his claim in the money suit which was decreed in February, 1922. On realising Rs. 12,623 on the decree in the mortgage suit there was a small balance of Rs. 1,400 left unpaid. The present execution case relates to that amount of Rs. 1,400 which has been levied against the respondent under the following circumstances. The appellant brought the suit as aforesaid on the mortgage against the mortgagor Satish and in that suit be alleged that as the respondent was one of the attaching creditors of Satish and had attached the money in the hands of the Court over which the appellant had prior lien he was a necessary party to the mortgage suit and, therefore, he also was made a defendant. At the hearing of this suit the respondent did not appear and the decree that was passed against him was in these words:
If the surplus sale proceeds in deposit in Court are not found sufficient to satisfy this decree, the defendant No. 2 shall have to pay to plaintiff for the satisfaction of this decree so much of the surplus sale proceeds unlawfully appropriated by him.
3. The appellant contends that he is entitled to recover Rs. 1,400 as balance of his mortgage decree from the respondent as he has unlawfully appropriated this money. The learned Subordinate Judge, however, who by be way, is the officer who had passed all the orders in the case including the decree in the appellant's mortgage suit overruled the appellant's contention and dismissed the execution case.
4. It is argued by the appellant that the view taken by the learned Subordinate Judge of law and. facts is wrong. It is said that the order passed by the Subordinate Judge on the 4th September, 1921, was one passed under Section 73, C.P.C. That order was wrongly passed inasmuch as the appellant was an encumbrancer and ought to have been given preference over the respondent who was merely money decree-holder. As that order was not appealable the appellant could not challenge it, but it may be revised and the rights of the parties determined in a separate proceeding as has been laid down by the Judicial Committee in the case of Sankar Sarup v. Lala Ful Chand (190l) 23 All. 313. It is argued that the appellant is not bound by that order and that by virtue of his being an encumbrancer ho ought to have preference over the respondent. In our judgment this contention is not sound. The order that was passed by the Court on the 8th September, 1921 was not one on the face of it, under Section 73, C. P.C. It is not a case where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment debtor. In the present case, there wore only two decree-holders, Mr. Galstaun and the respondent. The appellant had not obtained any decree at that time. He had two suits pending, one in respect of his claim for money pending in the Court at Asansole and the other was a mortgage suit. Besides the order that was passed by the Court was not distributing rateably the assets in its hands between the several decree-holders but direction was given how the assets which were at that time fully sufficient to satisfy the claims had to be applied. This order may be said to have been passed under Order 21, Rule 52. By that order the Court indicated how the money had to be paid between the different claimants, namely, fixed the question of priority between the decree-holders and any other person such as the appellant in this case ' claiming to be interested in such property by virtue of any assignment,, attachment or otherwise.' In my opinion the order passed under Order 21, Rule 52. is not an administrative order but a judicial order which is binding upon the parties concerned. The appellant, therefore, cannot now complain that the order that was passed by the Court was bad.
5. The next point which has been put forward by the learned Judge in support of this finding is that by the appellant's own conduct his decree was not fully satisfied and, therefore, he cannot claim any damage from the respondents. As I have observed the appellant obtained his decree on the 12th December, 1921. On the 14th December he withdrew the sum of Rs. 12,000 leaving about Rs. 1,400 due on his decree. On the 6th January, 1922, one Jangilal obtained a decree and attached Rs. 8,000 that was left in the hands of the Court to satisfy the appellant's decree and withdrew Rs. 1,482 out of that sum. On the 7th February, 1922, the appellant; withdrew the balance Rs. 6,517 after he had obtained a decree in the money suit. But he could have withdrawn the full amount of his decree in the mortgage suit out of Rs. 20,000 which was then in the hands of the Court. There was no justification for his not having withdrawn the entire amount of his decree. In my opinion, the view taken by the lower Court on this point is right.
6. Then again the decree that is passed against defendant No. 2 makes him liable for any amount that he may have unlawfully appropriated. It is difficult to hold that the respondent has unlawfully appropriated money which ought to have gone to the appellant. It is said that because the appellant as mortgagee had prior right over the sale proceeds therefore the act of the respondent to pay himself out of the sale proceeds before the appellant's claim was fully satisfied was bad. As I have observed, what the respondent did was under the order of the Court and in exercise of his legal right and there is no reason to suppose that ha acted in any way unlawfully or wrongfully so as to give a cause of action to the appellant against him. I may mention in conclusion that the learned Subordinate Judge who passed the order under appeal as well as the decree in the mortgage suit is of opinion that it Was by misrepresentation that the decree was passed. On the merits I do not think that there is any case for the appellant.
7. The result is that this appeal is dismissed with costs. We assess the hearing-fee at three gold mohurs.
8. I agree.