Money deposited in Court for the discharge and satisfaction of a particular decree is not specifically marked for the satisfaction of that decree and no other and is, therefore, open for rateable distribution between the other creditors of the judgment-debtor. A surety is not a judgment-debtor within the meaning of S. 2(10) of the Code of Civil Procedure and, therefore, the provisions of S. 73 are applicable to the assets held by the Court in the hands of the surety.

JUDGMENT :- This is a defendants second appeal directed against the judgment and decree of the District Judge, Jodhpur, dated the 9th July, 1962, in suit for recovery of money under S. 73 of the Code of Civil Procedure.

2. The facts which give rise the present controversy are practically undisputed. They are that Moolraj and hit sons Vijayraj and Hemraj obtained a decree in suit No. 69 of 1951 for a sum of Rs. 6223 and odd on 16th December, 1956 against Narsinghdar. During the pendency of the suit the plaintiff had obtained an attachment before judgment and the petrol pump belonging to Narsinghdas was attached. Narsinghdas offered Kanhaiyalal us surety for the payment of decretal amount. On 9th July, 1961 Kanhaiyalal executed a surety bond Ex. 4 in favour of the Court which had issued the order of attachment before judgment and consequently the property attached was released. On the same date Narsinghdas sold the petrol pump and deposited a sum of Rs. 6800 with Kanhaiyalal presumably to cover up the risk which Kanhaiyalal had undertaken as his surety. On 16th December, 1966 a decree in the sum of Rs. 6223 inclusive of interest and costs was passed against Narsinghdas, Meanwhile Kanhaiyalal had died. His son Atma Ram represented him, Moolraj and his sons Vijayraj and Hemraj sought execution of the decree against Narsinghdas and Atma Ram Atmaram deposited a sum of Rs. 6223 on 15th July, 1957 Against Narsinghdas there was another money decree and the decree-holder Lalchand filed an application for execution of the said decree on 4th May, 1957 and claimed reliable distribution from the amount of Rs. 6223 deposited by Atmaram. The application for rateable distribution was rejected by the executing Court and the amount deposited by Atmaram was paid in its entirely to Vijayraj and Hem Raj. Under the provisions of S. 73(2) of the Order Civil Procedure Lalchand instituted a suit in the Court of the Civil Judge on the ground that the money deposited by Atmaram actually belonged to Narsinghdas and it being the judgment-debtor's property Lalchand was entitled to a rateable distribution. A sum of Rs. 2454 was claimed by way of retable distribution. The trial Court dismissed the suit Lalchand preferred an appeal before the District Judge, who reversed the finding of the trial Court and held that Lalchand was entitled to rateable distribution Vijayraj and Hem Raj. Moolraj having already died, have not come up in second appeal.

3. Mr. Purohit, the learned counsel for the appellants, has urged that the words "asset" are held by a Court" in S. 73 of the Code of Civil Procedure do not cover money deposited for a specific purpose. He placed reliance on Lalchand Radhakisan v. Ramdayal Ramnarayan. AIR 1939 Bom 112 and D.C. Johar and Sons Ltd. v. Mathew, AIR 1962 Ker 106. His next contention is that Kanhaiyalal's son Atmaram was a surely and, therefore, a judgment-debtor within the meaning of Section 2(10) mad with S. 145 of the Civil Procedure Code. The judgment-debtor Narsinghdas being a different judgment-debtor from Atmaram no question of rateable distribution under S. 78 arose. He plated reliance an Khagendra Nath v. P.C. Rai, AIR 1942 Oudh 491 and Sakharam Lahanuji v. Mahadeo Venkat, AIR 1940 Nag 79. He lastly urged that when money was deposited for a specific purpose a case of equitable lien arose and only Hemraj and Vijayraj were exclusively entitled to enforce that lien and Lalchand could not claim any rateable distribution therein. He placed reliance on Gouranga Behari Basak v. Manindra Nath Das Gupta, AIR 1933 Cal 625 and Seena Vana Ramiah Ayyar v. Gopala Ayyar, 49 Ind Cas 20 : (AIR 1919 Mad 607).

4. Mr. S.T. Porwal, learned counsel for the respondent No. 2, the judgment-debtor Narsinghdas, contended that the amount was deposited for specific purpose and it was not available for rateable distribution.

5. Mr. S.C. Bhandari, learned counsel for the respondent No. 1, urged that the expression "assets are held by a Court" as employed in