1. In this case it appears that the petitioners on the one side and the opposite party on the other held two money decrees against certain judgment-debtors of whom four are common to the two decrees. Both parties applied each for the execution of their own decree in the Court of the Subordinate Judge of the 24 Pergannahs. On the application of the opposite party in execution of his decree certain properties were put up to sale and were in fact sold by the officer of the Court on the 19th of September 1916. In an application presented on the 18th 'September the opposite party applied that he should be permitted to bid at the sale to be held on the 19th and also applied that the amount of his bid, if accepted, should be set off against the money due under his decree. There is no express order on this application intimating that he would be permitted thus to set off the purchase-money against the amount due under the decree; but there is an order to the effect that to the extent of 19th for certain reasons the amount bid would have to be paid in cash into Court. From this it may legitimately be inferred that the understanding was that should the decree-holder be the successful purchaser he would be permitted as to the remaining 8/9ths to set off his bid against the amount due. Meanwhile on the 14th August the petitioners had applied for execution of their decree and on the 21st September before the proceedings conducted by the Nazir of the Court had been in fact reported to the Court for the acceptance of the decree holder's bid, the petitioners applied that the sum realized at the sale should be ratably distributed between them and the opposite party. This application was refused by the Subordinate Judge on the ground that he had already given permission to the opposite party to set off the amount of the purchase-money against the sum due under his decree, and it is against that order that the present Rule is directed.
2. Now from the language of Section 73 of the Code of Civil Procedure and also from the decision of this Court in the Full Bench case reported as Gonesh Das v. Shiva Lakshman 30 C. 583 : 7 C.W.N. 414, the authority of which in our opinion has been in no way impaired by the insertion of the word passed in Section 73 of the new Code, in so far as the shares due from the four judgment-debtors common to the two decrees are concerned, that application was a proper application.
3. In argument before us it is contended on behalf of the opposite parties, that the assets, that is to say, the amount bid at the sale by the opposite party decree-holder was never held by the Court, inasmuch as that money remained throughout in the hands of the purchasing decree-holder. This is an argument which we are unable to accept. It is quite clear that it was open to the Court to direct the purchasing decree holder to pay that sum into Court and it was, therefore, in the power and under the disposal of the Court, and, in our opinion, it was, therefore, held by the Court within the meaning of section ?3, Civil Procedure Code. We can also see no reason why on the 21st of September the Subordinate Judge should not have made an order directing rateable distribution to which the petitioners were clearly entitled. It is quite true that the purchasing decree bolder might have said, 'I made my bid on certain conditions and if those conditions are altered now to my prejudice I may withdraw my bid.' If he had taken up that attitude, it is fairly clear that the Subordinate Judge would have been bound to give way to it, but as a matter of fact neither then nor now hits the purchasing decree-holder desired that he should be permitted to withdraw his bid or that the sale in his favour should be set aside. Though he had received permission to bid on the understanding that the amount would be set off against the money due under his decree, there had been no formal order up to that time directing that the sum should be thus set off, and the money was as much at the disposal of the Court on the 21st as it was on the 19th September.
4. It has further been urged that we should leave the petitioners to their remedy under Section 73(2) of the Code of Civil Procedure. It may be that as provided by that sub-section they have a remedy by suit, but as has been held in the case reported for instance in Madden v. Chappani 11 M. 356 : 4 Ind. Dec. (N.S.) 248 and recently in Gopal Chandra Bose v. Hari Mohan Dutt 30 Ind. Cas. 49 : 21C.L.J. 624, a refund of this sort, and this is essentially a refund, may be enforced by process in execution. Having regard to the time at which the petitioners decree holders made their application, we think that they, are entitled to the remedy that they asked for in these proceedings.
5. It has lastly been urged that the judgment-debtors were necessary parties to these proceedings, but whether they should have been made parties or not, as there was no contention advanced on their behalf in the Court below to the effect that the petitioners' decree was not a valid subsisting decree, we think that this objection taken now in the Rule that was issued more than ten months ago his been taken at too late a stage.
6. For these reasons we make this Rule absolute. We set aside the order made by the Subordinate Judge on the 21st September 1916 and remand the proceedings to Him in order that he may ascertain to what sum the petitioners decree holders are entitled under the provisions of Section 73 of the Code of Civil Procedure in respect of the shares due from the four judgment-debtors who are common to the two decrees. When he has ascertained the amount thus due he will direct the opposite party to pay that sum into Court, and if they fail to do so he will realize the same from him by summary process. The sum thus ascertained will carry interest at the rate of six percent, per annum from the 21st September 1916, the date on which the decree-holder opposite party resisted the just claim of the petitioners until the date of realization.
7. The petitioners are entitled to their costs of this Rule, which we assess at four gold mohurs.