Entitlement of the holder of a decree for money to claim rateable distribution with holders of decrees for money only, as established by the interpretation of Section 295 of the Civil Procedure Code.

1. The facts of the case are correctly stated in paragraph 8 of the District Munsifs judgment.

2. The District Munsif, assuming that the plaintiff had a "decree for money" within the meaning of Section 295, Civil Procedure Code, still dismissed the suit on the ground that it was incapable of execution, except as against the mortgaged property at the time when the plaint property was sold at the instance of the first defendant.

2. The District Judge confirmed the District Munsifs decree for two reasons: firstly, because Section 295(c) in his opinion barred the plaintiffs decree, and, secondly, because the plaintiffs decree was not "a decree for money" within the meaning of Section 295, Civil Procedure Code.

3. The plaintiff appeals and we think with good reason. The District Judge is manifestly in error in supposing that clause (c) of Section 295 governs the case. That clause refers only to property sold "in execution of a decree ordering its sale for the discharge of an encumbrance thereon." In the present case the property sold by first defendant was not encumbered property, but other property of the judgment-debtor.

4. The plaintiff and defendant had respectively a first and a second mortgage over other property of the same mortgagor, but neither of them held any encumbrance on the property sold by first defendant. It seems to us that the plaintiff and first defendant were in exactly the same position with regard to this property and each was equally entitled to a rateable share of the sale-proceeds.

5. The District Judge is, in our opinion, wrong in holding that the present decree is not "a decree for money" within the meaning of Section 295, Civil Procedure Code. No doubt, his view is supported by the language used in Ram Gharan Bhagat v. Sheobarat Rai (1894) I.L.R., 16A., 418 but the opposite view was held by the Calcutta High Court in Hart v. Tara Prasanna Mukherji I.L.R. 11 C., 718. The exact terms of the decree in the Allahabad case are not reported, nor is the Calcutta case referred to therein; but in our opinion the law is correctly stated in the latter case.

The decree before us runs as follows:--"That the defendants do pay plaintiff within two months from this date Rs. 2,500 with interest and costs and that, in default, plaintiff do recover the same by sale of the plaint property, and the balance, if any, from first to six defendants. It seems to us that this is a decree for mondy, and that it does not lose this character, because the decree declares the mode and the order of the procedure by which it is to be realised.

The first paragraph of Section 295 runs as follows:--"Whenever assets are realized by sale or otherwise in execution of a decree, and more persons than one have, prior to the realization, applied to the Court by which such assets are held for execution of decrees for money against the same judgment-debtor, and have not obtained satisfaction thereof, the assets, after deducting the costs of the realization, shall be divided rateably among all such persons.

6. It is under this paragraph that the plaintiff claims the right to" a rateable share of the property. Formerly, the creditor who. first attached property had a prior claim to have this decree satisfied out of the sale-proceeds to the exclusion of other creditors, hut now all judgment-creditors who apply to the Court, prior to realization, are entitled to share rateably, and under the penultimate paragraph of the section, if any of such assets be wrongly paid to any person, a judgment-creditor entitled to a rateable share may sue to recover the same from the person wrongly paid. It is under this paragraph that the plaintiff brings his suit. In the words of the Calcutta case already referred to--" The object of the section appears to us to be to provide for the rateable distribution of the assets of a judgment-debtor among all persons who have obtained decrees ordering the payment of money to them from the judgment-debtors and the fact that a perso