Section 63 of the Civil Procedure Code applies to deal with rateable distribution among decree-holders, regardless of whether the decrees were passed by the same court or different courts. The purchaser must be allowed to make the choice to have a re-sale or to pay into court the amount due on rateable distribution to the rival decree-holder.

Venkatasubba Rao, J.

1. This appeal raises a point not covered by authority; before dealing with it, we shall first dispose of certain other matters which have been argued.

2. The first question to be decided is this. Section 73, Civil Procedure Code, provides that those decree-holders alone are entitled to rateable distribution who have applied for execution to the Court by which the assets are held. Mr. T.M. Krishnaswami Aiyars contention is in effect, that this is a self-contained rule and is not to be read as controlled by or being subject to, the provision embodied in Section 63. To accept this contention would be to defeat and render nugatory the last-mentioned section. Section 63 must be treated as constituting an exception to Section 73 in this respect. Although the decree-holder claiming rateable distribution should ordinarily, as prescribed by Section 73, have applied for execution to the Court by which the assets are held, Section 63, recognizing an exception, lays down when and to what extent this rule may be departed from. Where, as is stated in Section 63, the property is under attachment in execution of decrees* of more Courts than one, if the other conditions specified in Section 73 are fulfilled, the right to rateable distribution arises. By adopting this construction alone, we can give full effect to both the sections mentioned. In Narasimhachariar v. Krishnamachariar AIR1914Mad454 the facts are thus stated in the judgment of Wallis, J., as he then was,

In the present case a debt due to the judgment-debtor by the Public Works Department and attached in execution of several decrees against the judgment-debtor in several Courts has been paid into this Court under Section 63 and Order 21, Rule 36 Civil Procedure Code by the Executive Engineer who has at the same time forwarded a list of the attachments served on him up to that time, one of which was prior in date to the attachment by this Court. The case then came before me sitting alone, when the prior attaching creditor who has not transferred his decree to this Court, claimed to be paid in priority to the decree-holder in this Court, or at least to be entitled to rateable distribution; and in view of the importance of the question and the conflict of decisions, I directed the case to be posted before a Bench and notice to be served upon all the creditors mentioned by the Executive Engineer as having attached before payment into this Court; and they have now appeared and preferred their claim to rateable distribution.

3. It was held by Wallis and Bakewell, JJ., that the decree-holders in the other Courts were entitled to rateable distribution. It will be seen that the Court which held the assets was the High Court; nevertheless all the creditors, who had attached the debt in the several Courts, were held entitled. There, the Court that held the assets was a Court of higher grade; but the position may be reversed for, that would make no difference in principle.

4. Then, the effect of Clause (2) of Section 63 has to be considered. That clause provides:

Nothing in the section shall be deemed to invalidate any proceeding-taken by a Court executing one of such decrees.

5. Does this merely prevent the sale from being invalid, or does it have the further effect of taking away the right of the rival decree-holders to rateable distribution? As to the effect of Section 285 of the Code of 1882 there was a conflict of opinion. Where a sale was held, for instance, by a Court of lower grade when it ought to have been held by a Court of higher grade, the view taken by the Calcutta, Bombay and Madras Courts was, that the rule being one of procedure, the sale was not invalid; but, according to the Allahabad decisions, the sale was absolutely null and void, as one made without jurisdiction. It was. on account of this conflict, that Sub-Section (2) was introduced by the Code of 1908, and it gives effect to the view taken by the Calcutta, Bombay and Madras Courts (see Mullas Cod