Provisions of Order 21, Rule 28 can override the terms of Section 73.

This Civil Revision Petition raises an interesting question of law as to the interpretation of section 73, Civil Procedure Code. The petitioner herein filed Small Cause Suit No. 312 of 1950 and obtained a decree on 31st July, 1950. He filed I.A. No. 878 of 1950 and obtained attachment before judgment of two National Savings Certificates standing in the name of the defendant and given as security before the Collector of Guntur, in respect of a licence issued in his name. The attachment before judgment was made absolute on the 20th of September, 1950 after the suit was decreed. The respondents herein filed Small Cause Suit No. 1 of 1949, on the file of the Subordinate Judge’s Court, Narasaraopet, and attached the National Savings Certificates before judgment on 14th December, 1950. Before they were so attached, the petitioner herein filed E.A. No. 672 of 1950 to cash the National Savings Certificates on 4th December, 1950, but, as the order of attachment before judgment was passed by the Subordinate Judge’s Court, Narasaraopet, on 14th December, 1950, the application was dismissed on 12th March, 1951. The District Munsiff of Bapatla, having cashed the National Savings Certificates, sent the amount to the Subordinate Judge’s Court, Narasaraopet, on 10th August, 1951. As per the directions of the District Munsif, the petitioner herein filed E.A. No. 115 of 1951 before the Subordinate Judge, Narasaraopet, claiming that he was entitled to the full value of the National Savings Certificates. His contention was that the application by the respondents was made long after the receipt of the assets and that, therefore, the respondents were not entitled to an order for rateable distribution. The simple question for consideration is what exactly is the meaning of “assets” in section 73.

The meaning of the expression “assets” given in the Concise Oxford Dictionary (fourth edition) is “enough goods to enable heir to discharge debts and legacies of testator ; property liable to be so applied ; effects of insolvent debtor ; property of person or company that may be made liable for debts”. In Webster’s Dictionary, the meaning given is “the entire property of all sorts belonging to a person, corporation or an estate”. The learned Advocate for the petitioner contended that the expression “assets” must be construed as including National Savings Certificates and that as the National Savings Certificates were received by the District Munsif’s Court of Bapatla, on 18th September, 1950, long before the order of attachment before judgment was made by the Subordinate Judge’s Court, Narasaraopet, no rateable distribution should be ordered. Though no doubt “assets” may ordinarily mean every form of property, still, I am not prepared to adopt the dictionary meaning in construing the provisions of section 73, Civil Procedure Code. The later part of section 73 furnishes a valuable clue as to the meaning of the expression “assets”, and it runs in the following terms.

“The assets, after deducting the costs of realization shall be rateably distributed among all such persons”.

If the expression “assets” is to be understood as meaning every form of property, the costs of realization cannot be deducted out of the assets, but only out of the moneys realised from and by the sale of the assets. So, I agree with the contention of the advocate for the respondents that the expression “assets” in section 73 means only money.

The only two decisions that are directly in point and brought to my notice in regard to the interpretation of the expression ‘‘assets“are those reported in Deva Dutta Saroji & Son v. P. C. Mitter & Son1 and Jogesh Prasad Chowdhury v. Saligram Lakshminarayan2. In Deva Dutta Saroji & Son v. P.C. Mitter & Son1 at page 155 McNair, J. states as follows: —

”But this argument appears to me to beg the question, namely, what is the meaning of the word “assets”? And I can find no reported case in which the term has ever been applied otherwise than to m