JUDGMENT : This is an application by the decree-holder in Small Cause Suit No. 674 of 1953 to revise the order of the Subordinate Judge, Kakinada in E. P. No. 260 of 1954 allowing rateable distribution under S. 73, Code of Civil Procedure, to the decree-holder in Small Cause Suit No. 476 of 1952.

2. In order to appreciate the contention raised by Sri Adavi Kama Rao, the learned Advocate for the Petitioner, it is necessary to set out a few relevant facts. The respondents herein filed E. P. No. 429 of 1953 in execution of his decree in S. C. No. 476 of 1952 and attached the cattle belonging to the 3rd judgment-debtor Mangamma. The cattle were entrusted to a surety who executed a bond undertaking to produce the cattle as and when called upon to do so.

As the surety did not later on produce the cattle, the Execution Petition was dismissed on 1-3-1954. The decree-holder thereupon filed E. P. No. 237 of 1954 on 8-3-1954. Meanwhile the same cattle were attached by the petitioner herein in E. P. No. 260 of 1954 in execution of his decree in S. C. No. 674 of 1953 and a sum of Rs. 362-13-0 was realised by sale on 22-9-1954. The respondent herein contended that as he had filed E. P. No, 237 of 1954 in execution of his decree passed against the same judgment-debtor, he was entitled to claim rateable distribution. The Court below allowed his application and the decree-holder in S. C. No. 674 of 1953 has filed the present revision application.

3. Two points were raised by Sri Adavi Rama Rao, on behalf of the petitioner : (]) that there is no application specifically praying rateable distribution under the terms of S. 73, C. P. C. and that therefore no relief ought to have been granted; (2) that the terms of S. 73 (1) are not complied with as the respondent was seeking to execute the decree only by enforcement of the surety bond.

4.There is no force in the first contention. What is required under the terms of S. 73, C. P. C. is that more persons than one should have, before the receipt of the assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor. As there was already E. P. No. 237 of 1954 filed by the respondent, there was no need for him to pray therein that he was entitled to rateable distribution. As pointed out by Subbarao C.J. in Jambanna v. Honappa, 1956 Andh WR 1047 : (AIR 1957 Andh Pra 1017) (A), the important condition is whether the party seeking rateable distribution had filed an application for execution of the decree for the payment of money before the receipt of assets.

5. The second point raised by Sri Adavi Rama Rao depends upon the correct interpretation of S. 73 (1), C. P. C. Section 73 (1), in so far as it is relevant runs as follows :

"Where assets are held by a Court and more persons than one have, before the receipts of such assets, made application to the Court for the execution of decree for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof What the section enacts is that before the receipt of the assets, the application for execution should have been filed and the decree for the money should have been passed against the same judgment-debtor. The liability that was sought to be enforced as against the surety was the liability due under the decree. There is no doubt that the surety was bound to produce the cattle of the judgment-debtor which were entrusted to him. As he had defaulted to produce the cattle, he had to pay the price of the cattle. It cannot be contended that there was only a decree for payment of money against the surety and that it was a new liability. In Hoti Lal v. Chatura Prasad, ILR (1941) All 77 at p. 96 : (AIR 1941 All 110 at p. 117) (FB) (B), Iqbal Ahmed J., pointed out why the word "passed" was newly introduced in S. 73 of the Code. The observations are as follows : "The Legislature, in my judgment, added the word "passed" in the new section in order to make it clear that

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