A decree-holder who has not attached property is entitled to a share in rateable distribution under Section 73 of the Civil Procedure Code, provided that the decree-holder has filed an application for execution before the assets are actually received by the attaching court.

( 1 ) THIS revision petition is directed against an order of the IVth Additional Judge, City Civil Court, Hyderabad given on 29-12-1962.

( 2 ) THE essential facts are that five decree-holders obtained money decrees against one Sultan Bakath Begum from the City Civil Courts. The petitioner obtained a decree for Rs. 15,575-20 np. The 1st respondent Ama Ravamma obtained a decree for Rs. 27,435-20 np. We are not concerned with regard to the decree amounts of the other decree-holders. It is however necessary to mention that one Keshagiri Rao, who had obtained and decree for Rs. 6,000 against the same judgment-debtor, from the 1st Additional Judge, City Civil Court and in whose favour the order of rateable distribution is made, is not made a party to this revision petition. The four decree-holders except the 1st respondent applied in their execution petitions for the attachment of a certain amount held by the receiver appointed by the High Court in C. S. No. 13 of 1958. The Judgment-debtor was one of the defendants in the said suit. The amount thus attached was sent to the attaching Court in the form of a cheque for Rs. 16,407 on 24-7-1962. The cheque was cashed on 31-7-1962 by the attaching Court.

( 3 ) WHILE so, the 1st respondent applied for the execution of her decree in E. P. No. 17/62 on 20-7-1962. In her petition, she wanted that the amount in the hands of the receiver in C. S. No. 13 of 1958 on the file of the High Court should be attached Her petition was returned on 23rd of July, 1962 on the ground that she has not obtained permission from the High Court before which C. S. No. 18 of 1958 was pending. Without obtaining any such permission, the decree-holder re-presented the execution petition within the time permitted for re-presentation on 26-7-1962. In this application, she modified the relief which she had earlier claimed. She now stated that since the cheque has been received from the receiver in C S. No. 13 of 1958, it is not necessary to attach the money in the hands of the receiver. She therefore, apart from the prayer of rateable distribution, asked for attachment of moveable property of the judgment-debtor not in the hands of the receiver.

( 4 ) A dispute arose whether in these circumstances the 1st respondent is also entitled to her share in rateable distribution in the amounts received from the receiver. It was contended by the four decree-holders that the 1st respondent is not entitled to such amounts, firstly because the amount was sent by the High Court in order to satisfy the decrees obtained by the four decree-holders who had attached the amounts and not to satisfy the amount of the decree of the 1st respondent, and secondly the 1st respondent had not applied as is required under Section 73, C. P. C. before the assets were received by the attaching Court. The Court below negatived both these contentions and directed pari passu distribution of assets amongst all the five decree-holders through its order dated 29-12-1-1962. It is this order that is now challenged in this revision petition.

( 5 ) THE same two contentions are raised before me in this revision. Before I deal with these two contentions, I must dispose of a preliminary objection raised by the learned counsel for the 1st respondent. The contention of Mr. A. Raghuveer, the learned counsel for the 1st respondent, is that Keshagiri Rao, one of the five decree-holders who was a party to an order under Section 73, C. P. C. by the lower Court, has not been made a party to this revision petition. Since he is a necessary party, the revision must fall for not impleading him. I think the preliminary objection is well founded. The order of the distribution pari passu under Section 73, C. P. C. is an order between all the five decree-holders. The order has become final in so far as Keshagiri Rao is concerned any order inconsistent with the finality of that order in so far as Keshagiri Rao is concerned will be bad in law. It is not denied that Ke