JUDGMENT

1. This is an application by a rival decree holder from an order granting rateable distribution of the assets realised by the Court. The applicant had obtained a money decree against the judgment-debtor and his property had been attached by him and put up for sale at auction. The respondent decree-holder who also had a money decree against the same judgment-debtor from another Court got the decree transferred to the same Court which was executing the applicant's decree. After the execution of the decree, had been transferred, he filed an application on the 15th of March, 1929, describing it as an application for execution. It was in fact on a printed tabular form prescribed for applications for execution under Order XXI, Rule 11. All the particulars required for an application in execution were filled in from columns Nos. 1 to 9. In the last column No. 10 which has a heading 'the mode in which the assistance of the Court is required' he stated that the only property which the judgment-debtor had, had already been attached in execution of the other decree and was to be put up for sale on the 20th of March following. He, therefore, prayed that the decree holder should be paid his decretal amount by rateable distribution of the amount realised at the auction sale. He gave particulars of his own decree and the amount due from the judgment-debtor. It is not disputed that the officeof the Court below treated this application as one for execution and the Court actually ordered it to be registered as such. After the assets were realised the Court in spite of the objection by the applicant to the contrary ordered a rateable distribution.

2. The applicant has now come up in revision to this Court and it is urged on her behalf that the order of the Court below was either without jurisdiction or illegal because there had been no proper application for the execution of the respondents' decree before the assets were realised. This argument is based on the circumstances that in the prayer sought for there was no request either for the attachment of the property and sale or for the arrest of the judgment debtor. The contention is that the only modes of execution of a money-decree are attachment and sale or sale without attachment and arrest and that unless one of these modes is specified there is no proper application for execution in accordance with law. Strong reliance is placed on a AIR 1929 148 (Nagpur)

3. Under Order XXI, Rule 54 the way in which Immovable property can be attached is by making an order prohibiting the judgment-debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge. The order has to be proclaimed in the way prescribed in Sub-section (2) of that rule. It cannot be disputed that in the present case this procedure had already been adopted at the instance of the applicant himself. The property was already in custodia leges and there seems to us to have been no absolute necessity for a fresh attachment of the same property, that is to say, a fresh order issued to the judgment-debtor prohibiting him from transferring or charging it.

4. The Explanation to Section 64 undoubtedly implies that a priority as against subsequent transferees is established by a claim for rateable distribution which is included in the claim for attachment. It seems to us to follow that one may have claim for rateable distribution without a fresh attachment. As a matter of fact even in cases of money-decrees it is not always necessary to have a fresh attachment. Order XXXVIII, Rule 11 refers to one case where there need not be an order for attachment after the decree.

5. The real point to consider is the proper interpretation of Section 73, Civil Procedure Code, under which the Court below has acted. That section requires that before the Court has received the assets there must have been an application to the Court for the execution of the decree for the payment of the money