JUDGMENT

Nanavatty, J - This is a second appeal against the judgment and decree dated 19th March 1932, passed by the learned Subordinate Judge of Gonda upholding the judgment and decree dated 20th December 1930, passed by the learned Munsif of Tarebganj, Gonda, and dis-missing the objection of the judgment-debtor Sital Bakhsh Singh. The facts out of which this second appeal arises are briefly as follows: Dwarka Prasad was the original judgment-debtor and there were two decree-holders Somai Prasad and Jang Bahadur. Somai Prasad applied for execution of his decree on 9th July 1928, and again applied for attachment and sale of 2 pies 2 kirants out of 1 anna 10 pies and 6 kirants share in patti Gajraj Singh situate in village Mudera. The objections of the judgment-debtor were dismissed and sale of the ancestral property was ordered and the file was sent to the Revenue Court for necessary action. On 23rd May 1930, the decree-holder Somai Prasad filed a certificate showing full satisfaction of his decree. About a year before that Jang Bahadur Singh on 4th April 1929, applied under Section 73, Civil P.C., for rateable distribution. The contention on behalf of the judgment-debtor raised by his learned Counsel is that the application of 4th April 1929, is not an application for execution of the decree within the meaning of Order 21, Rule 11, Civil P.C., and in support of his contention he relies upon Arunachellum Chettiar v. Haji Sheik Meera, AIR 1929 PC 135, in which it was laid down that Section 230, Civil P.C., provided for an application for execution and Section 235, Civil P.C., specified the form and contents of the application and that a mere application for rateable distribution, which did not comply with the requirements of Section 235 in form or substance could not be treated as an application for execution, falling within the scope of Section 295, Civil P.C. In Chunni Lal v. Jugal Kishore, (1904) 27 All 132, (at p. 135) a learned Judge of the Allahabad High Court held as follows:

In order that a decree-holder may be entitled to a rateable distribution under this section the following conditions muat exist; two or more decree-holders must be holders of decrees for money against the same judgment-debtor; the decree-holder seeking rateable distribution must prior to the realisation have applied to the Court by which the assets are held for execution of his decree.

2. It is clear therefore that in the present case there is no proper application for execution of the decree as required by Order 21, Rule 11, Civil P.C., of the present Code. The only result of this defect in the application is that under Order 21, Rule 17, Civil P.C., the Court will allow the defect to be remedied and may fix a time within which it may be remedied and, in case the decree-holder fails to remedy the defect within such a time, the Court may reject his application for execution. It seems to mo therefore that under Order 21, Rule 17, Civil P.C., in the circumstances of this case, it is proper that I should allow the second decree-holder Jang Bahadur Singh who is respondent in the present appeal to amend his application of 4th April 1929 for execution of his decree by making it conformable to the provisions of Order 21, Rule 11, Civil P.C., and for that purpose the case must be remanded to the lower Court.

3. As regards the objection that in the absence of any evidence on the record to show that notice had been issued to the Bale officer as required by Order 21, Rule 55, Civil P.C., I am of opinion that in view of the fact that I am remanding this case to the lower Court for having the application for execution of decree amended I need not say anything here at present. I allow this appeal and remand the case to the lower Court for a trial in accordance with law. The appellant will get his costs of this appeal. Other costs will abide the result.