For rateable distribution, the decree of the applicant must either have been passed by the same court which received the assets or there must have been a transfer of the decree to that court.

Happell, J.

1. The petitioner was the decree-holder in Small Cause Suit No. 2 of 1940 in the Vellore Sub-Court and the first respondent was the decree holder in Small Cause Suit No. 79 of 1940 in the same Court. The respondent had his decree transferred for execution to the original side of the Subordinate Judges Court as execution involved the sale of immovable property. The property was sold, and the assets were received on the 7th of November, 1940 and the 21st of November, 1940. The petitioner meanwhile had his decree transferred for execution to the District Munsiffs Court, Vellore, but sometime before the 5th of November, 1940, it was re-transferred to the Sub-Court and on 5th of November, 1940, an application was made for execution by the arrest of the judgment-debtor. The judgment-debtor in the two suits, Small Cause Suit No. 2 of 1940 and Small Cause Suit No. 79 of 1940 was the same. On 19th November, 1940, the petitioner applied to the Subordinate Judge for rateable distribution in respect of the assets realised in execution of the decree in Small Cause Suit No. 79 of 1940. The learned Subordinate Judge dismissed this application by a short order in which he observed:

There has been no transfer of the decree to this Court by the decreeing Court, namely, this Court on its small cause side. The petition is therefore not maintainable and is dismissed.

Under Section 73 of the Code of Civil Procedure in order that a decree-holder may be entitled to rateable distribution an application has to be made for execution to the Court holding the assets before the receipt of those assets. The question in this civil revision petition therefore is whether the petitioners execution petition was filed in the same Court or in a different Court from the Court in which the assets in respect of the execution of the decree in Small Cause Suit No. 79 of 1940 were received. The contention put forward on behalf of the petitioner in substance is that since both the petitioners suit and the respondents suit were small cause suits, the Court of the Subordinate Judge of Vellore is one and the same Court in respect of them even though the decree in one of the suits is executed on the original side of the Court. This contention is opposed to-the only decision of this Court on the question which either side has been able to cite. That is a decision by Tyabji, J., in Chella Narasiah v. Sontan Obbayya (1913)25MLJ601 . In that case the facts are not distinguishable from the facts of the present case except that it is not entirely clear whether two small cause suits were in question or one small cause suit and one original side suit. In any case, the learned Judge held that in order to entitle a party to rateable distribution the decree of the applicant must either have been passed by the same Court which received the assets or there must have been a transfer of the decree to that Court; and he held that the Court of the District Munsiff in the exercise of its small cause jurisdiction is not the same Court as the Court in exercise of its ordinary jurisdiction. The contention for the petitioner is that this decision, even if two small cause suits were in question, should not be followed by reason of the provisions, of Section 33 of the Provincial Small Cause Courts Act. The argument is that under Section 33 the Court which is invested with small cause powers is one Court with respect to the exercise of its small cause jurisdiction and another Court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes; and that, that being so, a Court cannot under any circumstances be one Court when exercising its jurisdiction in respect of one small cause suit and another Court when exercising its jurisdiction in respect of another small cause suit. In short the contention is that the Court is still exercising small cause jurisdiction even when it is dealing with a small cause suit the decree