Money desposited in Court available for rateable distribution.

This revision petition raises a question of some importance, viz., whether money deposited by a judgment-debtor under Order 21, rule 89 will enure only to the benefit of the decree-holder that brought the properties to sale in execution of his decree or available for rateable distribution under section 73, Civil Procedure Code. The petitioner in this case, who obtained a money decree in O.S. No. 608 of 1946 on the file of the District Munsif’s Court, Guntur, brought certain properties of the judgment-debtor to sale and they were purchased by a third party. The judgment-debtor applied to set aside the sale under Order 21, rule 89 depositing 5 per cent. by way of solatium to be paid to the purchaser and the decree amount payable to the petitioner as mentioned in the proclamation of sale. The respondent herein, a decree-holder in O.S. No. 480 of 1947 on the file of the District Munsif’s Court, Ongole, who was executing his decree, applied for rateable distribution of the amount deposited by the judgment-debtor. The petitioner opposed this application contending that the same having been paid specifically for his benefit could not be distributed under section 73, Civil Procedure Code.

The District Munsif overruling the objection of the petitioner granted the prayer of the respondent. In doing so he relied upon a ruling of this Court in Thiraviyam Pillai v. Lakshmana Pillai1. The learned District Munsif thought that the trend of the reasoning in that case supported his conclusion.

The creditor, who is aggrieved by this order, has filed the present revision petition challenging the propriety of that order. Mr. Kotayya, appearing for the petitioner, submits that far from lending any support to the view taken by the learned District Munsif, Thiraviyam Pillai v. Lakshmana Pillai1 , is clear authority for the proposition that a deposit made under Order 21, rule 89 is not available for rateable distribution.

Therefore the point that falls to be decided in this petition is, whether the view taken by the learned District Munsif is correct. Before going into that question, it is useful to set out the terms of Order 21, rule 89, Civil Procedure Code.

"89. (1) Where immoveable property has been sold in execution of a decrre the judgment-debtor or any person deriving title from the judgment-debtor or any person holding an interest in the property, may apply to have the sale set aside on his depositing in Court,-

(a) for payment to the purchaser, a sum equal to five per cent. of purchase-money, and

(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since th’e date of that proclamation of sale, have been received by the decree-holders."

It will be seen that the payment to be made under this rule is for two purposes, namely, the payment to the purchaser and the payment to the decree-holder. What is argued for the respondent is that in spite of the mention of the purpose for which the amounts are deposited into Court, the money should be distributed equally amongst all the decree-holders, whose applications for execution are pending in view of the provisions of section 73, Civil Procedure Code. Section 73 of the Civil Procedure Code provides,

"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 realisation, shall be rateably distributed among all such persons.

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The view pressed upon me is that the expression "assets held by a Court" is wide enough to include the amounts deposited under Order 21, rule 89 and would therefore come within the ambit of that sec