A person claiming rateable distribution under Section 73 of the Civil Procedure Code, 1908, must have made an application for execution of his decree before the receipt of the assets by the court.

Dixit, J. :- This revisional application raises a question of rateable distribution under S. 73, Civil P. C., and the facts necessary to understand the question are these.

2. The applicant obtained against Opponent No. 1 a decree for a sum of Rs. 2,386-9-0 in civil Suit No. 196 of 1947 on 7-2-1948. Opponent No. 2 to the application obtained a money decree for a sum of Rs. 1,285-6-0 against the same defendant in civil suit No. 191 of 1947 on 23-1-1948. The petitioner had applied for attachment before judgment upon the moveable property of the defendant. The attachment was granted and the same was made absolute under the decree. Opponent No. 2 also had applied for attachment before judgment upon the defendants moveable property and that attachment too was made absolute under the decree.

3. The moveable property in respect of which attachment was sought and levied happened to be property of a perishable nature and it appears that the property was sold, pending the opponents suit and a sum of Rs. 1,412 was realised as a result of the sale. This sum of Rs. 1,412 was placed to the credit of Suit No. 191 of 1947, that is to say, in the suit of opponent No. 2.

4. On 27-1-1948, that is to say, about four days after obtaining his decree, Opponent No. 2 filed darkhast No. 22 of 1948, and in the prayer clause of the darkhast he stated that he should be given the sum of Rs. 1,412 which lay to the credit of his suit and which amount was recovered as a result of a sale of the moveable property of the defendant. Upon this application for execution, the executing Court made an order on 30-1-1948, directing notice to the plaintiff in civil Suit No. 204 of 1947 and civil Suit No. 196 of 1947 to issue. It appears that this notice was made returnable on 10-2-1948, and the matter stood adjourned to 19-2-1948. Upon the latter date, viz. 19-2-1948, the petitioner applied for execution of his own decree by darkhast No. 31 of 1948. In the application for execution the petitioner in prayer cl. 10 stated that there was in the Court a deposit of Rs. 1412 and that he should be given rateable distribution with the decree-holder in regular darkhast No. 22 of 1948.

5. The executing Court considered this dispute between the two rival decree-holders and the learned Judge of the executing Court made on 20th March 1948, an order directing that the decree-holder of darkhast No. 22 of 1948 was entitled to get the whole of his decree satisfied out of the amount lying in Court, and it is the correctness of this order which has been assailed by Mr. Lirkar on behalf of the petitioner.

6. Now, there are certain facts about which there can be no dispute. In the first place, the two decrees are decrees for the payment of money. The decrees in question have been passed against the same judgment-debtor. The two decree-holders have also applied for execution of the money decrees, and the question is whether the applicant is entitled to claim rateable distribution in the sum of Rs. 1412 with opponent No. 2. Section 73 which has a bearing upon this question, so far as material, runs as follows :

"Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons."

7. The words in S. 73 which require construction are (1) "where assets are held by a Court" and also the words "before the receipt of such assets." It is, I think, apparent from the language of S. 73 that the question of rateable distribution must arise of necessity, in the course of execution proceedings. The decree must be a decree for the payment of money. The decree must be passed against the same judgment-debtor and there must be an application for execution to the Court before the receipt of the assets. No