1. This is a Rule calling on the opposite party to show cause why the order of the District Judge of Purnea, dated the 17th July, 1908, rejecting the application of the petitioners for participation in the surplus proceeds of sale of the judgment-debtor's property should not be set aside.
2. It appears that on the 2nd April 1906, several holders of decrees for money applied under Section 295, Civil Procedure Code, for rateable distribution of the proceeds of sale which was then going to take place. The sale was actually held on the 4th April 1906. Subsequent to the sale, several other holders of money decrees applied for attachment of the surplus proceeds after satisfaction of the decree in execution of which the property had been sold. The Court below has dismissed the former application on the ground that it is only those decree-holders who have attached the surplus sale proceeds, that are entitled to rateable distribution under Section 295, Civil Procedure Code.
3. We are unable to agree in this view. The language of Section 295 is quite clear. It says, amongst other things, whenever assets are realized by sale or otherwise in execution of a decree, and more persons than one have, prior to the realisation, applied to the Court by which such assets are held for execution of decrees for money against the same judgment-debtor &c.;' What that section requires is that the decree-holder who applies for rateable distribution must apply for execution of his decree to the Court by which the assets are held and that he must do so prior to their realization. The section does not say that such decree-holder must also apply for attachment of the assets. It appears that the decree in respect of which rateable distribution was applied for in this case was made by the District Judge of Purnea; it was then transferred for execution to the Subordinate Judge. But before such transfer, an application for execution had been made by the petitioners in the Court of the District Judge. They also made a further application to the same Court before the assets were realized. We are, therefore, of opinion that both the conditions had been fulfilled and that the petitioners had qualified themselves to make an application under Section 295. We are also of opinion that those decree-holders who attached the surplus sale proceeds subsequent to the realization of the assets, are not entitled to have any share in the assets. No authority has been cited by the learned Vakil who appears on behalf of the opposite party in support of the view taken by the Court below that it is only those decree-holders who attached the surplus sale proceeds that are entitled to participate in the assets. On the contrary our view is tupported by the case of W.R. Fink v. Moharaj Bahadur Singh 4 C.W.N. 27; 26 C. 772 where Stanley, J. says as follows:
4. 'It is clear that no creditor who obtained an attachment order subsequent to the realisation of the rents now represented by the moneys in Court is entitled to participate, as it is only decree-holders who have applied to the Court for execution of their decrees prior to the realisation, who are comprehended in the section.' It has been argued that we are not competent to interfere with this order under Section 622, Civil Procedure Code, but there are instances in which an order under Section 295, Civil Procedure Code, has been set aside by this Court. See for example the case of Sew Bux Bogla v. Shib Chunder Sen 13 C.225 and also by the Madras High Court see Viraraghava v. Parasurama 15 M. 372.
5. As we have already stated, the Court below rejected the application solely on the ground that these petitioners had not attached the sale proceeds in execution of their decrees. In our opinion, that ground is not tenable: and as the lower Court has not dealt with the other points in the case, the order must be set aside and the case sent back to the District Judge for determination of the other points arising upon this application.
6. Rule No. 2690 of 1908.--It appears that in this case the decree was made by this Court on its Original Side and it was transferred to the Court of the District Judge of Purnea for execution. In that Court, an application for execution was made by the decree-holders and the decree-holders also applied under Section 295 for rateable distribution on the 2nd April 1906, that is, prior to the realisation of the assets. In this case the decree-holders duly qualified themselves to make an application under Section 295, Civil Procedure Code.
7. The order so far as regards this case must also be set aside and the case sent back to the District Judge for the determination of the other points arising out of the petition.
8. Both these Rules must be made absolute with costs, five gold mohurs in each case. Costs must be borne by such of the opposite parties as have opposed these Rules.