The specific rule of distribution laid down under Order 21, Rule 89 of the CPC prevails over the general rule of rateable distribution laid down under section 73 of the CPC.

P. B. MUKHARJI, J.

( 1 ) THIS application requires determination of the question whether deposit of money in Court under Order 21, Rule 89, Civil P. C. , is liable to rateable distribution tinder section 73 of that Code.

( 2 ) THE summons was taken out by the plaintiff-decree-holder for an order that the Sheriff of Calcutta do pay to him the sum of Rs. 8,193-13-0 less the commission and other expenses payable to the Accountant-General towards pro tanto satisfaction of his claim under the decree.

( 3 ) THE facts may be very briefly stated.

( 4 ) THIS decree was made in favour of the applicant, on 19-5-1947, ordering the defendants to pay to the plaintiff the sum of Rs. 6,500/- with interest at 6 per cent. per annum from the date of the decree until realisation, and also the costs of the plaintiff to be taxed by the Taxing Officer of this Court, with interest at the same rate until realisation. The applicant obtained on 11-2-1948, an order for attachment of premises No. 7, Taltola Lane, Calcutta and, in fact, attached the said premises in pursuance thereof. On 30-6-1948, the applicant obtained an order for sale of the said premises and such premises were sold by public auction on 14-3-1951, and purchased by one-Krishna Hari Bose for a sum of Rs. 17,500/ -. The judgment-debtors then made an application on 12-4-1951, to set aside the sale and for leave to deposit the money required under Order 21, Rule 89, Civil P. C. The required deposit under Order 21, Rule 89, of the Code was made by the judgment-debtors. On 4-9-1951, the sale was set aside and leave was granted to the plaintiff to apply to this-Court for payment of the decretal amount. The present application of the decree-holder now is that after deduction of the Sheriff's poundage and other charges, the sum of Rs. 8,193-13-0 which is still lying with the Sheriff to the credits of this suit may be paid to him less the commission and other expenses payable to the Accountant-General towards the pro tanto satisfaction of his decree.

( 5 ) THE Sheriff's certificate annexed to the petition in support of the summons discloses the claims of certain other decree-holders against the same judgment-debtors. Two such decree-holders have appeared on this summons. One is Jyotsna De, an attaching creditor who however has not objected to the order asked for in terms of the summons. But there is another attaching creditor in Suit No. 2202 of 1948 intituled Bhuson Kumar Sen and Ors. v. Laxmisona Pyne and Ors. On behalf of the attaching creditors in the Suit No. 2202 of 1948 Anil Kumar Sen, one, of the plaintiffs-decree-holders therein, has affirmed an affidavit in opposition to the summons. His case is that he along with other plaintiffs in that suit obtained a money decree for Rs. 5,362/- on 31-3-1949. with interim interest, interest on judgment, and costs. He says further that the said decree in that suit was executed and attachment was levied on the same premises No. 7, Taltola Lane, Calcutta. No further proceedings, however, were taken in that suit, for sale, in view of the proceedings taken already by the plaintiffs in this suit. It is, therefore, his case that the attachment levied in execution of the decree in his suit is still subsisting, and he claims rateable distribution out of the funds in the hands of the Sheriff standing to the credit of this suit.

( 6 ) THE short point raised on this summons is one of law and of very controversial nature. It involves the interpretation of some provisions of the Civil P. C. The point for determination is whether the money deposited under Order 21, Rule 89, of the Civil P. C. is subject to rateable distribution under section 73 of that Code.

( 7 ) A good many authorities have been shown to me both in support of as well as against rateable distribution of such funds in the hands of the Sheriff. When authorities are divided, I venture to put forward my own interpretation and reasons for my conclusion first and then deal with the authorities l

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