(1) The question in this revision is whether the lower court was right in dismissing the application on the ground that the conditions laid down in section 73, civil procedure code, have not been satisfied. section 73, civil procedure code, says :
"where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the court for the execution of decrees for the payment of money passed against the same judgment - debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation shall be rateably distributed among all such persons."
(2) The important condition, therefore, is that the party seeking rateable distribution should have filed an application for execution of the decree for the payment of money before the receipt of assets.
(3) In the present case, the petitioner obtained a decree in small cause suit no. 693 of 1949 and filed e. P. No. 250 of 1950 to execute that decree. In that execution application, he attached the properties of the judgment - debtor and subsequently the execution application was dismissed. The respondent obtained another decree in small cause suit no. 149 of 1950 against the same judgment - debtor and, in execution of that decree, brought the property to sale and the sale proceeds were deposited in court on 20th january, 1953. The petitioner filed e. P. No. 53 of 1953 before the receipt of assets for rateable distribution. The learned district munsif dismissed that application on the ground that the said application was not an execution application as contemplated by order 21, rule 11, civil procedure code and, therefore, the necessary condition laid down in section 73 was not complied with.
(4) The only question, therefore, is whether the said application was an execution application within the meaning of that section. The application was filed under order 21, rule 11, civil procedure code. It is styled as an execution petition. The names of the parties, the date of the decree and other particulars laid down in order 21, rule 11 are mentioned in the appropriate columns. In column 9 under the heading 'against whom to be executed' the name of the defendant is shown. In column 10 under the heading 'the mode in which the assistance of the court is required', it is stated that the decree - holder should be paid the rateable from and out of the proceeds to be realised on sale and deposited in court. It is therefore, manifest that the petitioner satisfied both in form and substance the requirements of order 21, rule 11, civil procedure code
(5) In deorajo kuer v. Jadunandan rai, (1930) i. L. R. 53 all. 125. A division bench of the allahabad high court ruled, where the property of the judgment - debtor had already been attached and been ordered to be sold at the instance of one decree - holder, and another decree holder made an application in the form prescribed for applications for execution and prayed for a rateable distribution of the assets to be realised, mentioning that the property was already under attachment and orders for sale, that, for the purpose of section 73 of the civil procedure code, the application was a sufficient application for execution of the decree as required by that section. At page 129, the learned judges observed :
"when an application for rateable distribution is made after an attachment has already taken place the attachment really enures for the benefit of all claimants and is as effective as if it had been brought about separately by each of them, provided of course that they had, before the assets were realised, applied for execution of their decrees. In such cases it is quite sufficient for them to ask that the sale should take place and the sale proceeds distributed amongst them proportionately. As we interpret the application, there was in substance an implied prayer for the sale of the property and rateable distribution. We may point out that section 73 does not require a separate application for rateable distribution and accordingly there can be no objection to including a prayer for the distribution of the assets in the application which is really for execution of the decree itself."
(6) It follows that the application filed in the present case was an application for execution within the meaning of section 73, civil procedure code and, therefore the learned judge was wrong in denying the petitioner his claim for rateable distribution. The order of the lower court is set aside. The petitioner will have his costs here and in the court below. Revision allowed.