1. The petitioner before us applied for rateable distribution under Section 73, Civil Procedure Code. That was disallowed and thereupon the petitioner obtained this Rule.
2. It appears that the opposite-party obtained a decree against the judgment debtor and in execution of that decree in the Court of the Subordinate Judge of Nadia, certain properties were sold. One of the properties was purchased by the decree holder for Rs. 3,600 and a third party purchased another property. The sale took place on the 22nd November 1920. The decree holder applied for and obtained permission to bid at the sale. He then applied that the purchase--money and the amount due under the decree might be set off against one another under the provisions of Order XXI, Rule 72. The Court ordered that the matter would be taken up on the 9th December. On the 30th November the petitioner informed the Court of the Subordinate Judge of Nadia that he had applied for execution of the decree (obtained by him against the judgment debtor) before the District Judge of Nadia, and had also prayed for rateable distribution. He asked the Court not to grant the prayer for a setoff made by the decree-holder but to direct the latter to deposit the money in cash, He further represented that the District Judge had directed the Subordinate Judge to send the money to the Court of the former for rateable distribution. This, however, was not the fast.
3. A notice was served upon the decree-holder to show cause why he should not deposit the money in cash. The third party auction purchaser deposited the balance of the purchase-money in respect of the property purchased by him in Court. On the 18th December 1920, the Subordinate Judge considered the question of set-off and was of opinion that it was not necessary for the decree-holder to deposit the money in cash, and the matter was accordingly adjourned till the 4th January for confirmation of the sale. In the meantime, the execution case then pending before the District Judge was transferred, upon the application of the petitioner, to the Court of the Subordinate Judge, and on the 4th January the petitioner made an application for the first time before the Subordinate Judge for rateable distribution. The question for consideration in the Court below was whether the assets had been realised before the application for rateable distribution was made, i.e., before the 4th January 1(sic)21. The Court below answered the question in the affirmative. That also is the question raised before us.
4. No doubt, there is no order directing the set off, but under the provisions of Order XXI, Rule 72, if permission is granted to a decree-holder to bid at the sale and the decree-holder purchases with such permission, the purchase-money and the amount due under the decree may, subject to the provisions of Section 73, be set off against one another, and the executant of the decree shall enter satisfaction of the decree in whole or in part according to law. The right to set-off is, no doubt, subject to the provisions of Section 73 of the Code. But in the present case, Section 73 did not apply because no application had been made by the petitioner at any time before the 4th January to the Executing Court. At the date when the decree holder applied for a set off, there was nothing to prevent the set off being allowed and it would have been done as a matter of course. The order was not made because it was represented to the Court by the petitioner that the District Judge had directed the Subordinate Judge to send the assets to his Court for rateable distribution. However that may be, on the 18th December 1920, the Court held that the decree holder was not required to deposit the amount in Court: that amounted to an order for a set off, because if the set off was not allowed, the decree holder would have been required to deposit the amount in Court. It is also clear from the fact that the matter was allowed to stand over till the 4th January for confirmation of the sale. We think, therefore, that in the present case the assets must be taken to have been realised before the 4th January, when for the first time the petitioner made an application to the Executing Court for rateable distribution, and that the Court below was right in the view it has taken.
5. The Rule must accordingly be discharged with costs, two gold mohurs.