Section 73 of the Civil Procedure Code applies only to money realized in execution by the Court and not to money voluntarily deposited by the judgment-debtor for payment to a particular decree-holder.

Kinkhede—This Miscellaneous Appeal raises a question of law, namely, whether Section 73 of the Civil Procedure Code applies to moneys voluntarily deposited by judgment-debtor for payment to a particular decree-holder. The lower appellate Court held that Section 73 of the Civil Procedure Code applies to a case where money is realised in execution by process of the Court and not where it is deposited in Court by judgment-debtor for payment to the decree-holder under the decree passed in one suit.

2. The cases of Sorabji Coovarji v. Kala Raghunath,1912 13 BLR Hari Saha v. Faizlar Rahman,1913 17 CalWN 636 and Suikeena Katun Sahiba v. Mohammad Abdul Aziz,1915 9 IndCas 239 are authorities in support of the view that ''assets'' must mean moneys recovered by process of execution ; it does not mean money obtained by the Executing Court. The whole tenor of Section 73 shows that the money to be distributed must be such money as has been realised by the Court by sale of the property attached. In Balmer Lawrie and Co. v. Jadunath Banerjee,1915 27 IndCas 644 it was pointed out that the word ''assets'' conveys the idea of assets realised or converted into cash before they can be said to be held by a Court, the word 'realized' implies conversion into cash. If property is simply attached there is no realisation of assets and consequently where no Sale is held it cannot be said that the ascents are held by the Court. No doubt in Tiraviyam pillai v. Lakshmana Pillai, 1918 35 MadLJ 150 it was held that money having been paid into Court under a pending application, was assess hold by the Court under Section 73 of the Code and was available for rateable distribution amongst the several decree holders, who nave already applied for exaction. In taking this view the Madras High Court dissented from the view taken by the Bombay High Court in Sorabji (sic) v. Kala Raghunath, 1912 12 IndCas 911.; similarly the case in Golstaum v. Woomesh Chandra Bannerjee,1916 85 IndCas 850 was distinguished as being a case of a deposit under r. 89 of the Civil Procedure Code on the ground that that rule distinctly provides for payment to decree holder or to the purchaser and consequently she payment must have been taken to have been earmarked. If such earmarking of the money by the Statute excludes the claim of other decree-holders, I fall to see why the same consequences should not follow when the judgment-debtor remarks the money by depositing in into Court to the credit of any particular decree-holder in compliance with the provisions of other rules such as 1 to 2 of O. XXI or r. 55 of the said Order.

3. When the Executing Court orders the decree to be executed under O. XXI, r. 23 and issues its process for execution of the decree under O, XXI, v. 124, Civil Procedure Code, and the process-server goes with the process of arrest or attachment against property but the judgment-debtor on that occasion under fear of the impending arrest or attachment pays the money in his presence to the decree-holder or hands it over to the process-server for being deposited into Court in order to avoid his being attached or his property being attached, and the latter credits it in the name of the decree-holder, who bad taken out the process of execution by way of arrest or attachment, the money is earmarked for payment to the decree-holder. In one case it is actually paid over, and in the other case it is deposited as payable to the particular decree holder to whose credit it is deposited. In both these cases the money cannot be said to have been realised by execution of any process, because the process-server bad no necessity to execute it by arresting the judgment-debtor or attaching his property. It has been hold by Justice Macleod in Ebji Umersey v. W. & A. Graham & Co., 1917 19 BLR 274 that moneys paid by a judgment debtor to the officer arresting him in order to secure his release are not assets hold by a Court within the meaning of Section 73, Civil Procedure Code. Where a