Iqbal Ahmad, J.:— The question for consideration in the present appeal is as to what is the true interpretation of the words “decrees for the payment of money passed against the same judgment-debtor” in section 73(1) of the Code of Civil Procedure, and on the answer to that question depends the fate of this appeal.

The facts that have given rise to the question are undisputed and are as follows. Hoti Lal plaintiff appellant obtained a simple money decree (No. 59 of 1930) against one Bishambhar Sahai on the basis of a promissory note executed by Bishambhar Sahai. Bishambhar Sahai died after the passing of the decree, and then his sons Navin Chandra and Abinash Chandra were brought upon the record as his legal representatives and certain properties of Bishambhar Sahai were attached in execution of the decree.

Makhan Lal, the ancestor of the contesting defendants respondents, also held a promissory note executed by Bishambhar Sahai and Navin Chandra, and, after the death of Bishambhar Sahai, he put that promissory note into suit impleading Navin Chandra and Abinash Chandra as defendants. Makhan Lal's suit was decreed and a decree (No. 620 of 1931) was passed in his favour against Navin Chandra personally and against the assets of Bishambhar Sahai in the hands of Navin Chandra and Abinash Chandra. Makhan Lal put his decree in execution and got some of the properties already attached by Hoti Lal sold. One of the items of the attached properties was sold and purchased by one Reoti Prasad for Rs. 1,325 and another item of the attached properties was sold and purchased by Makhan Lal himself for Rs. 1,415. It appears that Makhan Lal took the sum of Rs. 1,325 from court on the 26th of October, 1932, and filed a receipt for Rs. 1,415 in respect of the property purchased by him on the 29th of March, 1932.

Hoti Lal applied for rateable distribution of the two amounts, but the execution court disallowed his application on the 25th of August, 1934. Hoti Lal then brought the suit giving rise to the present appeal in accordance with the provisions of section 73(2) of the Civil Procedure Code. Both the courts below dismissed the suit, holding that though the other requisites of section 73(1) were satisfied Hoti Lal was not entitled to a decree for rateable distribution as the two decrees, viz., decrees Nos. 59 of 1930 and 620 of 1931, were not “passed against the same judgment-debtor” within the meaning of section 73.

By the present appeal the decisions of the courts-below are assailed and it is maintained that in the circumstances of the present case Hoti Lal was entitled to a rateable share out of the amounts fetched at the auction sale.

The relevant portion of section 73(1) reads as follows: “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.”

Section 73(1) of the present Code corresponds to section 295 of the Code of 1882 and the relevant portion of section 295 was as follows: “Wherever assets are realised by sale or otherwise in execution of a decree and more persons than one have, prior to the realisation, 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 realisation, shall be divided rateably among all such persons.”

It would be noted that the word “passed” that has been introduced in the present Code between the words “for the payment of money” and the words “against the same judgment-debtor” did not find a place in the former Code, and it has to be considered as to what is the effect of the addition of the word “passed” in section 73 of the present Code.

There is sharp conflict of judicial opinion about the interpretation of the words “the same judgment-debtor”, and, broadly speaking, one view is that a strict literal construction ought to be put on these words, whereas the other view is that these words ought to be liberally construed, keeping in view the object with which the section was enacted. While it may be conceded that much can be said in favour of either view, I, for reasons to be presently stated, prefer the latter view.

By sections 270 and 271 of the Code of 1859, which corresponded to present section 73, the decree-holder who first attached the property had the right to have his decree satisfied in full out of the sale proceeds to the exclusion of the other decree-holders and the surplus that remained was to be rateably distributed “amongst any other persons who prior to the order for such distribution may have taken out execution of decree against the same defendant and not obtained satisfaction thereof.” This statutory priority given to the first attaching creditor led to scrambles among attaching decree-holders, and, with a view to put an end to the same, these sections were changed by the Codes of 1877 and 1882 so as to place all decree-holders on an equal footing regardless of any priority in attachment or of the application for rateable distribution. These legislative changes demonstrate that the object underlying the enactment of section 73 was to prevent multiplicity of execution proceedings while at the same time ensuring equitable distribution of assets between various decree-holders who had the right to have their decrees satisfied out of those assets. The objects of section 73 were thus summarised by Strachey, C.J, in Bitkal Dos v. Nand Kishore(1): “Now the object of the section is two-fold. The first object is to prevent unnecessary multiplicity of execution proceeding, to obviate, in a case where there are many decree-holders, each competent to execute his decree by attachment and sale of a particular property, the necessity of each and every one separately attaching and separately selling that property. The other object is to secure an equitable administration of the property by placing all the decree-holders in the position I have described upon the same footing, and making the property rateably divisible among them, instead of allowing one to exclude all the others merely because he happened to be the first who had attached and sold the property.”

While it is a recognized canon of construction that the words used in a statute should be given their natural and ordinary meaning, it is also well settled that “Unless it is very clear that violence would be done to the language of the Act by adopting any other construction, any great inconvenience which might result from that suggested may certainly afford fair ground for supposing that it could not be what was contemplated by the legislature, and will warrant the court in looking for some other interpretation”; vide Broom's Legal Maxims, Eighth Edition, pages 150 and 151.

In the construction of statutes one must, therefore, primarily adhere to the strict literal interpretation of the words used, but if such adherence is destructive of the object of the enactment and leads to anomalies and absurdities it is fair to assume that the legislature did not intend to use the words in that sense, and in such a case a liberal interpretation that is consistent with the object of the enactment is to be preferred, provided no violence is done to the words used by the legislature. In other words, when the phraseology of an enactment is clear and unambiguous and capable of one and only one interpretation, it is not open to the courts to give a go by to that interpretation simply with a view to carry out what is supposed to be the intention of the legislature. But if the phraseology used is capable of two-interpretations, that interpretation which is consistent with the object of the enactment is to be preferred to the interpretation that would nullify that object. As was observed by Walsh, J., in the Full Bench decision of Mubarak Husain v. Ahmad, “Where a section of an Act is capable of two renderings or is said to mean less or more than it says, it is a maxim of interpretation that one must look at the scope and object of the enactment. For this purpose it is helpful to recall the history.” In short, though a court cannot, while interpreting a statute, assume the functions of the legislature to legislate, it is nevertheless its duty to put a commonsense interpretation on statutory enactments in preference to a literal interpretation that is destructive of the object of the enactment.

In the light of the principles formulated above I proceed with the discussion of the question under consideration.

To begin with it would be convenient to notice the cases in which a strict literal construction, or what has been characterized as the “eo nomine construction”, has been put on the expression “the same judgment-debtor”.

In Hart v. Tara Prasanna Mukherji(2) it was argued that decrees against a defendant personally, and against the same defendant in a representative capacity, were not decrees “against the same judgment-debtor” within the meaning of section 295 of the Code of 1882, and the learned Judges, while pointing out that the question did not arise for decision in the case, observed that if they had to decide the point they would have held that the decrees were “against the same judgment-debtor”.

The facts in Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.*(3) were identical with the facts of the present case. In that case M obtained a money decree against B.B died after the passing of the decree and B's son K was brought on the record as B's legal representative and the property of B was then attached and sold in execution. In the meantime one G had obtained a decree against “B, deceased, by his son K and against the estate of B deceased”; and G applied under section 295 to share rateably in the proceeds of the sale in execution of the other decree. The application of G was refused on the ground that the two decrees were not “against the same judgment-debtor”. Jenkins, C.J, observed that. “It is useless to speculate as to any other test than that which the section itself provides, and that test is stated in the plainest terms. So far as the present case goes, it is enough to say that the money decrees must be against the same judgment-debtor. Here, however, one decree is against B and the other is against his son K. It is true that the second decree is expressed to be against ‘B, deceased, by his son K’; but this incorrect mode of expression can make no difference…. It is so obvious that one hesitates to make the remark, but it is the fact that a dead man cannot be a party to a suit. It cannot too, in this case, make any difference that the decree is expressed further to be ‘against the deceased's estate’; that does not make B a judgment-debtor in respect of a decree in a suit commenced after his death.”

Chandavarkar, J.:— Also, after pointing out that one decree was against B and the other was against B's legal representative, held that “It cannot be said, therefore, looking to the names of the parties, that the two decrees are against the same judgment-debtor.” He further observed that “It is true that the estate that is liable in the case of both the decrees is the estate of the deceased B, but section 295 does not make the nature of the liability under the decrees contemplated by it one of the essential conditions for the application of the section.” In short, he decided that a decree against B while he is alive and a decree against K after B's death, as B's legal representative, are not against one and the same judgment-debtor.

The decision in Govind Abaji's case was followed in Srinivasa Aiyangar v. Kanthimathi Ammal. In the Madras case A obtained a decree against one M and after M's death B obtained a decree against the legal representatives of M and his estate in their hands. B applied under section 295 of the code of Civil Procedure to share rateably in the proceeds of property sold in execution of A's decree. B's application was rejected on the ground that the two decrees were not “against the same judgment-debtor” and it was observed that the fact that the two decrees are to be realised out of the property of M “is not decisive of the question against whom the decrees are made”. The decision proceeded on the ground that whereas one decree was against M the other decree was against M's legal representatives, and, as such, there was not identity of judgment-debtors in the two decrees. It would be noted that the facts of this case were also on all fours with the facts of the case before us.

The decision in Govind Abaji's case was further followed by Rankin, C.J, in Jahar Lal v. Lalita Sundari and it was held that the undoubted requirement of section 73, a requirement which must be satisfied before person is entitled to a rateable distribution, is that the two decrees must have been passed against the same judgment-debtor.

The last mentioned decision was followed in Hemlaia Dasi v. Bengal Coal Co., and it was held that “For purposes of rateable distribution the executing court must take the decrees as they are”, and that if in the decrees the judgment-debtors are not identical, rateable distribution cannot be allowed.

To the same effect is the decision in Hemendra Nath Chaudhuri v. East Bengal Commercial Bank(4). In that case one decree was against “A, B, C and D” in their capacity as the legal representatives of their father, and the other decree was against “A, B, C and D” personally, and it was held by Nasim Ali and Heiderson, JJ., that the decrees were against the same judgment-debtors and rateable distribution should be ordered. The argument—that if one decree is against a man as legal representative of a deceased person and the other decree is against him in his personal capacity, the two decrees are not “against the same judgment-debtor” within the meaning of section 73—was repelled by the learned Judges and they observed that the introduction of the word “passed” in section 73 puts it beyond doubt that the decree should have been passed “against the same judgment-debtor”, and held that this test was satisfied in the case before them.

The matter was again considered by the Bombay High Court in Chunilal Raichand v. Broach Urban Co-operative Bank, and the earlier decision of the same Court in Govind Abaji was followed, and a recent Full Bench decision of the Madras High Court, to be referred, to hereafter, was dissented from. The learned Judges held that where one decree is against a certain person and another decree is against his legal representative on such person's death, the two decrees cannot be said to be “against the same judgment-debtor”, notwithstanding the fact that both the decrees are ultimately founded on a liability resting upon the deceased, this case also the facts were identical with the facts of the case before us, and the identity of the names of the judgment-debtors was held to be the decisive factor in the decision of the question as to whether the decrees were or were not “against the same judgment-debtor” within the meaning of section 73 of the Code of Civil Procedure.

Lastly there is the decision in Lal Singh Nayal v. Jiwanand by a learned Judge of this Court. It was held in this case that a money decree obtained against the father of a joint family and a decree obtained after his death against his sons upon a promissory note executed by them in respect of a debt due from their father are not decrees passed against the same judgment-debtor. The facts of this case were also very similar to the facts of the case before us, and the learned Judge who decided the case was of the opinion that as the names of the judgment-debtors as they appeared in the two decrees were not identical the decrees were not “passed against the same judgment-debtor”, and, as such, section 73 had no application to the case.

It will be observed that in all the cases referred to above it was held that in order to decide whether the decrees were “against the same judgment-debtor” one has to look only to the names of the judgment-debtors as they appear in the decrees. In other words, identity of names was held to be the decisive test, irrespective of the capacity in which decrees were passed against a particular individual and irrespective of the property which could be proceeded against in execution of one decree or the other.

A diametrically opposite view was, however, taken by a Full Bench of the Madras High Court in Rama Krishnan Chettiar v. Viswanathan Chettiar. In that case V obtained a simple money decree against P, and after P's death his two sons were brought on the record as his legal representatives and the family properties were sold in execution, and the sale proceeds were in the custody of the executing court. In the meantime, after P's death, R had obtained a decree against P's sons as against P's estate in respect of debts contracted by P, and had applied for execution of the decree. After the execution sale R applied for rateable distribution and his application was ultimately allowed by the High Court. Pandrang Row, J., who delivered the main judgment in the case, after noticing some of the cases referred to above, observed as follows: “It would therefore seem that the eo nomine construction cannot be the right one, and that the expression ‘the same judgment-debtor’ is not so simply and clear in its meaning as to dispense with any reference to the general intention of the section in which it is found. About that intention there can be no doubt; and a construction which defeats that intention no less the ends of justice should be avoided if the provisions of law are to be interpreted in a reasonable manner. The weight of authority appears to be in favour of the more liberal construction of the expression, ‘the same judgment-debtor’, and I would therefore accept that construction and hold that the petitioners in these petitions are entitled to rateable distribution.” Cornish, J., who delivered a separate but concurring judgment made the following observation: “There is, in my judgment, nothing illogical in describing as ‘the same judgment-debtor’ the legal representative against whom a decree has been passed in respect of a claim against the deceased-and the deceased person against whom a decree was passed in his lifetime but which is sought to be executed against his legal representative.” Beasley, C.J, agreed with the conclusions arrived at by the two learned Judges. It would be observed that the facts of this case were identical with the facts of the case before us.

This Full Bench decision was followed in Swaminatha Ayyar v. Saivu Rowthan, and Palaniappa Chettiar v. Palani Goundan.

In the three cases just mentioned a liberal construction, as opposed to a literal one, was put on the expression “the same judgment-debtor”, and rateable distribution was allowed mainly because the decrees were executable “against the same properties”, even though the names of the judgment-debtors as they appeared in the decrees were not identical. In other words, the identity of the properties which could be proceeded against in execution of the decrees, and not the identity of the names of the judgment-debtors, was held to be the criterion for the application of section 73(1) of the Code. In these cases the courts did not stop short at a mere ascertainment of the names of the defendants as they appeared in the decrees, but proceeded further with the inquiry as to the capacity in which the decrees were passed against those defendants. This inquiry was solely with the object of determining as to whether the decrees could or could not be realised by attachment and sale of identical properties. If they could, the decrees were held to be “against the same judgment-debtor”. If they could not, section 73 was held to be inapplicable.

There are numerous judicial decisions in which the capacity in which a defendant was sued, or the capacity in which execution was levied against him, was held to be an infallible guide for the determination of the applicability or otherwise of section 73. In Bhola Nath v. Maqbul-un-nissa a Muhammadan widow obtained against the other heir of her deceased husband a decree for her dower payable out of the estate of the deceased, and in execution thereof attached certain property of the deceased in the hands of the heir. A creditor of the heir, having obtained a money decree against the heir for his personal debt, subsequently attached the same property in execution of that decree, and the question arose whether the creditor of the heir was entitled to the benefit of the provisions of section 295 of the Code of 1882. This question was answered in the negative. It was held that are the decree obtained by the widow was against the heir as representative of her deceased husband, while the decree obtained by the creditor was against the heir in his personal capacity, the two decrees were not “in fact” obtained against “the same judgment-debtor”. The fact that the property attached by the widow was an asset of the deceased husband, and, as such, was primarily liable to satisfy the claims against the deceased in preference to a claim against the heir personally was emphasized to support the conclusion noted above.

To the same effect is the decision of the Lower Burma Chief Court in Toola Ram v. Abdul Gafur. It was held in that case that section 73 of the Code cannot be invoked unless the judgment-debtor occupies the same, character in each decree. The case is an authority for the proposition that where there is a decree against a “judgment-debtor personally and another against him as heir, he is not the same judgment-debtor in the two decrees within the meaning of section 73.

In Balmer Lawrie & Co. v. Jadunath Banerjee the contest was between two decree-holders one of whom had obtained a money decree personally against M and the other had obtained a money decree against a firm of which M was partner. It was held that section 73 was not applicable as the decree against the firm was not capable of execution against M “individually”.

Again in Nilmani Dey v. Hiralal Das the capacity in which the decrees were obtained against the defendants and the estate that could be proceeded against in execution of those decrees were held to be the test for the decision of the question under consideration. In that case a testator appointed A, B and C as executors to his will. X, a creditor, instituted a suit against A and B only for recovery of his dues from the estate of the deceased testator and obtained a decree. A, one of the executors, who was himself a creditor of the estate, also obtained a decree against B and C for recovery of his dues. A put his decree in execution and certain assets came to be held by the court. X applied for rateable distribution and his application was allowed, notwithstanding the fact that one decree was against A and B and the other decree was against B and C. It was held that as each decree was prima facie capable of execution against the estate of the deceased testator, “the two decrees may, without unduly straining the language of section 73, be regarded as passed against the same judgment-debtor, namely, they are both decrees against the estate of the testator, in one case represented by A and B, in the other case by B and C.” The learned Judges further observed in that case that they were “not disposed to put a narrow construction upon the terms of section 73, so as to defeat the ends of justice”.

A similar view prevailed in Munshi Lal v. Mohammad Amir Mirza. In that case the fact that one decree was against an heir in his representative capacity and the other decree was against that heir in his personal capacity, was held sufficient to preclude the application of section 73, as the two decrees could not be said to be against “the same judgment-debtor”.

Now, apart from the question as to whether a literal or a liberal interpretation is to be put on the expression “passed against the same judgment-debtor”, it cannot be disputed that section 73 enacts a mere rule of procedure and not a rule of substantive law. It merely enacts a rule by which decree-holders, in specified cases, can resort to a cheap and speedy procedure for the realisation of their decrees. It does not, however, clothe a decree-holder with a right which he does not possess. It does not enlarge the rights given to a decree-holder by his decree, nor does it cut down the rights to which a decree-holder may be entitled by the decree in his favour. It follows that section 73 cannot be invoked to entitle a decree-holder to satisfy his decree from assets which he could not touch if section 73 was not on the statute book. Conversely the provisions of section 73 cannot be utilized to deprive a decree-holder from satisfying his decree from assets which he would have been otherwise entitled to follow in execution.

If the strict literal interpretation that was accepted in the cases noticed in the earlier portion of this judgment is to be adopted, the inevitable result, in most cases, would be to entitle decree-holders to realise their decrees from properties against which, but for section 73, they could not have proceeded in execution, or to disentitle them to realise their decrees from properties from which, but for section 73, they could have satisfied their decrees. That this is so may be illustrated by a few examples.

Take the following case: A obtains a money decree against X (a Muslim) for X's personal debts. B also obtains a money decree against X in his capacity as legal representative of his (X's) father as against the assets of the father in respect of a loan advanced to the father. A executes his decree by attaching and selling the personal properties of X and not the properties inherited by him from his father. According to the eo nomine construction of section 73, B would be entitled to claim rateable distribution as X was the judgment-debtor in both the decrees. Such a result could not, however, have been in the contemplation of the legislature, for the simple reason that B's decree against X could be realised only from the assets of the father in X's hands and not from properties that X had not inherited from his father. Or take the converse case: B puts his decree in execution by selling the property of the father in X's hands and the amount fetched at the auction sale is just sufficient to satisfy B's decree. According to the eo nomine construction A would be entitled to claim rateable distribution, with the necessary result that B's decree will remain unsatisfied in part. It is manifest that apart from the provisions of section 73, A, in the given case, would not have been entitled to realise his decree from the properties of the father when the value of those properties did not exceed the liabilities of the father.

Again take another case: A files a money suit against X. B also filed a money suit against X. A obtains a decree against X in his lifetime. X, however, dies before the decision of B's suit, and Y, the son of X, is brought on the record as the legal representative of X. B's suit is then decreed against Y, the decree being realisable from the assets of X in Y's hands. Thereafter A executes-his decree by attaching X's properties in Y's hands. According to the strict literal interpretation of section 73, B would not be entitled to claim rateable distribution as the names of the judgment-debtors as they appeared in the two decrees were not identical. It is needless to observe that nothing could have been farther from the intention of the legislature than to enact a rule of procedure that was calculated to lead to such startling results. Both. A and B were the creditors of X and had, therefore, the right to realise their debts from X's properties, and the mere accident of X dying before the decision of B's suit could not nullify the right of B to realise the debts due to him from X's properties.

Take a third case: A, a Hindu, is indebted to B and C. A dies leaving a son X. B sues X for the recovery of the debt due to him and obtains a decree against the assets of A in X's hands. Then X also dies leaving a son Y. C brings a suit against Y and obtains a decree as against the assets of A in Y's hands. B thereafter puts his decree in execution by attaching and selling all the properties left by A and the amount realised at the auction sale is just enough to satisfy B's decree. According to the eo nomine construction, C will not be entitled to claim rateable distribution, and thus the entire assets of A will be realised by B and his decree will be satisfied in full, whereas C will be deprived of the fruits of his decree in its entirety. It is manifest that, but for section 73, C would have been entitled to share with B the assets of A, and I find it impossible to hold that the legislature could have intended to adversely affect this manifest right of C by enacting section 73.

When, in the course of arguments. I put these illustrations to Mr. P.L Banerji, the learned counsel for the respondents, he conceded that departure from strict literal interpretation of the words “passed against the same judgment-debtor” may be permissible in certain cases to avoid these anomalies. But in this connection he advocated the following propositions: (1) In the case of identity of names of the judgment-debtors in the decrees, it is open to interpret the decrees in order to find out whether they are in fact not against the same judgment-debtor; but (2) when the names of the judgment-debtors are not identical, it is not open to interpret the decrees to find out whether in fact the decrees were against the same person.

In short, it is not controverted that though the same defendant may, by name figure as a judgment-debtor in two decrees it is open to the court to inquire into the capacities in which that defendant was sued with a view to find out whether the decrees are not in fact “against the same judgment-debtor”. In other words, in such cases it is not the mere form but the substance of the decrees that is decisive of the question whether they are or are not against the same judgment-debtor. That being so, it passes my comprehension as to why, in cases where the names of the judgment-debtors are not identical, the court is precluded from looking into the real nature of the decrees with a view to ascertain whether, in fact and in substance, those decrees are against the same judgment-debtor.

To put the matter in another way. It is admitted on all hands that in the case of the identity of names of the judgment-debtors it is open to the courts to interpret the decrees with a view to discover whether they are not against the same judgment-debtor. In such a case it is admitted that departure from a strict literal interpretation of the words used is permissible. Why then, in the converse case, viz., in a case in which there is not the identity of names of defendants in the decrees, an examination of the substance of the decrees with a view to ascertain their real character should be barred is not explained. I am alive to the fact that the validity of a proposition does not necessarily lead to the conclusion that the converse of that proposition must also be valid. It is, for instance, correct to say that gold glitters. But it is equally manifest that it is incorrect to say that all that glitters is gold. In the question under discussion, however, it is not the validity of two propositions, one converse to the other, that is under consideration. On the other hand the sole question for decision is whether the words “against the same judgment-debtor” are or are not to be liberally construed. If they are to be so construed in one set of cases they must be similarly construed in another, even though diametrically opposite, set of cases.

It cannot be denied that a strict literal construction of the expression “the same judgment-debtor” has not been adopted in at least two classes of cases. In a series of cases it has been held that it is not necessary that all the judgment-debtors in each of the several decrees should be identically the same, and that it is sufficient if there is one judgment-debtor common to all the decrees. Thus where a decree is against A and another decree is against A and B it has been held that the decrees are against the same judgment-debtor within the meaning of section 73. The cases on the point are noted in Chitaley's Code of Civil Procedure, Volume I, page 647. Similarly in another class of cases it has been held that even though the person against whom the decrees were passed is the same in name, section 73 will not apply unless that person occupied the same character in all the decrees. If resort can be had in this class of cases to a liberal construction consistent with the object of section 73, there is no justification to give a go by to such an interpretation and to construe the words literally in those cases in which there is not the identity of names of the judgment-debtors in the decrees.

Again it was argued on behalf of the respondents that the legislature introduced the word “passed” in section 73 of the present Code with a view to bar the consideration of the consequences that might happen in execution proceedings. The argument is that in view of the addition of the word “passed”, the only relevant consideration in the determination of the question under consideration is to see whether the decrees were against the same judgment-debtor and not whether the same judgment-debtor could be reached in execution. There are two answers to this contention.

In the first place, in my judgment, the addition of the word “passed” was not with the object contended for by the counsel for the respondents. In Abadi Begam v. Shah Ara Begam it was laid down that the test of the application of section is not whether the decrees have been passed against the same judgment-debtor, but whether the applicants for a rateable share have applied for execution against the same judgment-debtor. In accordance with this decision rateable distribution of assets could be claimed under section 295 of the former Code if there was identity of judgment-debtors in the course of execution proceedings, even though one decree was against the judgment-debtor in his personal capacity and the other was against him in a representative capacity. This was, if I may say so with respect, another extreme view calculated to result in the anomalies of the description referred to in the illustrations given above. The legislature, in my judgment, added the word “passed” in the new section in order to make it clear that the words “against the same judgment-debtor” had reference to the decrees themselves, and not to the various applications for execution contemplated by the section.

In the second place, as already stated, it is conceded that notwithstanding the addition of the word “passed” one cannot stop short at mere identity of names of judgment-debtors, but has to ascertain the capacity in which the decrees were passed against those judgment-debtors. The use of the word “passed” does not, therefore, make it obligatory to adopt a strict literal interpretation of the words used.

Lastly reliance was placed on behalf of the respondents on the definition of “judgment-debtor” contained in the Code. By section 2(10) “judgment-debtor” is defined as meaning “any person against whom a decree…. has been made”. It is contended that in view of this definition the word “judgment-debtor” in section 73 must be deemed to refer only to the person against whom the decree was actually made. Again there are two answers to this contention.

In view of the opening words of section 2 the meaning given to the expression “judgment-debtor” by the Code is to hold good only if there is nothing “repugnant in the subject or context”. The subject dealt with by section 73 is that of rateable distribution of assets among decree-holders. If the expression “judgment-debtor” in section 73 is interpreted in the light of the definition of that expression, a repugnancy will be created in the subject dealt with by section 73, as one would be up against the anomalies of the description indicated above. The word “judgment-debtor” in that section must, therefore, be construed in a more extended sense than that given to it by section 2(10) so as to avoid repugnancy in the subject. It must be so construed as not to result either in the enlargement or in the nullification of the rights given to various decree-holders by the decrees held by them. In other words, it ought to be so interpreted as to entitle, on the one hand, all decree-holders who have the right to satisfy their decrees from particular assets to shave in rateable distribution thereof, and, on the other, to exclude from the benefit of section 73 such decree-holders as have not the right to realise their decrees from those assets. This is possible only if a liberal and not a literal interpretation is put on that expression.

The second answer to the contention noted above is furnished by the definition of the expression “legal representative”. Section 2(11) defines “legal representative” as meaning “a person who in law represents the estate of a deceased person….” If the expression “judgment-debtor” is interpreted in the light of its definition the relevant portion of section 73 will read as follows: “…. decrees for the payment of money passed against the same person against whom a decree has been made.” As a “legal representative” represents the estate of a deceased person, it will not be doing any violence to the language of section 73 if, in the above rendering of section 73, the legal representative of the person against whom the decree was made is substituted for that person.

For the reasons that I have given I have come to the conclusion that the expression “passed against the same judgment-debtor” must be liberally construed, and accordingly I, with all respect, dissent from the decisions in which the eo nomine construction was adopted. The object of section 73 being to provide for rateable distribution of assets upon which two or more decree-holders have equal claims, the words “passed against the same judgment-debtor” must, as observed in Abadi Begam's case, be interpreted as referring more to the property which a judgment-debtor represents “than to the person against whom execution has been sought”. In the present case Hoti Lal undoubtedly had the right to seek satisfaction of his decree from the assets of Bishambhar Sahai in the hands of his sons. Similarly Makhan Lal had also the right to realise his decree from the same assets of Bishambhar Sahai. Both Hoti Lal and Makhan Lal were, therefore, entitled to proceed in execution against identical properties, viz., the properties of Bishambhar Sahai. In the view that. I have taken section 73 must govern the present case, even though Hoti Lal's decree was against Bishambhar Sahai and Makhan Lal's decree was against his sons. The sons, though not nominally judgment-debtors in Hoti Lal's decree, must, in view of the definition of “legal representative” in the Code, be deemed to be judgment-debtors in that decree. I have, therefore, come to the conclusion that the decisions of the courts below are erroneous and that this appeal must be allowed.

One of the issues, viz., issue No. 8, raised in the trial court was in the following terms: “To what amount, if any, is the plaintiff entitled?”

No finding was recorded on this issue either by the trial court or by the lower appellate court. Further, the lower appellate court did not record any finding on the question of limitation raised by the contesting defendant. The dispute between the parties cannot be decided without an adjudication on the points just mentioned. Accordingly I would allow this appeal, set aside the decree of the lower appellate court and send the case back to that court with corrections to decide the point of limitation and issue No. 8 and then pass such decree in favour of the plaintiff appellant as he may be entitled to. I would further direct that the costs here and hitherto should be costs in the cause and should abide the result.

Bajpai, J.:— The facts of this case before the Full Bench are stated at length in the referring order, but they might be re-stated briefly. Seth Hoti Lal, the appellant before us, was the plaintiff in the court below. He obtained a decree for a certain sum of money against Bishambhar Sahai upon the basis of a promissory note executed by Bishambhar Sahai. This is decree No. 59 of 1930. Makhan Lal obtained a decree for money against Navin Chandra personally and against the assets of Bishambhar Sahai in the hands of Navin Chandra and Abinash Chandra, sons of Bishambhar Sahai. The promissory note upon the basis of which this decree was obtained was executed by Bishambhar Sahai and Navin Chandra. This is decree No. 620 of 1931. After the death of Bishambhar Sahai his two sons Navin Chandra and Abinash Chandra were brought on the record as his legal representatives at the execution stage and then certain properties were attached in execution of decree No. 59 of 1930. In the decree of Makhan Lal also certain properties were attached and then in execution of Makhan Lal's decree one property was sold and purchased by one Reoti Prasad for Rs. 1,325 and another property was sold and purchased by Makhan Lal the decree-holder for Rs. 1,415. Some assets thus came to be held by the court and as Hoti Lal and Makhan Lal had made applications to the court for the execution of their decrees for the payment of money, Hoti Lal applied for rateable distribution of the assets that were held by the court.

Hoti Lal's application was disallowed by the court on the 25th of August, 1934, and the entire assets were declared to be available to Makhan Lal alone, and we are informed that Makhan Lal withdrew the entire money from court.

The present suit was then filed by Hoti Lal on the 19th of October, 1935, in accordance with the provisions of section 73, sub-section (2) of the Civil Procedure Code. The courts below have dismissed the plaintiff's suit on the ground that the two decrees mentioned above, that is, decree No. 59 of 1930 and decree No. 620 of 1931 were not passed against the same judgment-debtor and therefore although many of the requirements of section 73 were satisfied one such requirement had not been satisfied. All the other points taken in defence were repelled by the trial court, and in appeal before the lower appellate court the only point that was taken by the plaintiff was the point whether the trial court was right in dismissing the plaintiff's suit on the ground that the two decrees were not passed against the same judgment-debtor. The lower appellate court also agreed with the trial court on the said point and if the appeal of the plaintiff appellant has to be allowed it would be necessary to remand the case to the lower appellate court for the decision of the other points taken in defence, as learned counsel for the defendants respondents has pressed before us that he does not propose to give up the other pleas taken in defence by him.”

Coming to the main question involved in this appeal, it is necessary to state the provision of law which falls for discussion. section 73 of the Code of Civil Procedure of 1908 corresponds with section 295 of the code of Civil Procedure of 1882. The material portion of section 295 ran as follows: “Whenever assets are realised by sale or otherwise in execution of a decree and more-persons than one have, prior to the realisation, 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 realisation, shall be divided rateable among all such persons.”

Section 73 of the Code of 1908 runs as follows: “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.” The phraseology of the section has been changed. I am of the opinion that the change has some significance, although some learned Judges have held the view that the alteration contained in the words italicized above has no importance. It was possible to hold under the old enactment that the crucial point was whether applications for execution of decrees for money were against the same judgment-debtor and not that the decrees were passed against the same judgment-debtor. In Abadi Begam v. Shah Ara Begam, Chamier, A.J.C, was of the view that section 295 of the code of Civil Procedure was applicable when applications for execution were made against the same judgment-debtor, whereas there could be no doubt that on the present language of section 73, the decrees must be decrees passed against the same judgment-debtor. To my mind the alteration in the phraseology has emphasised the fact that the execution stage has not to be looked into but attention has to be concentrated on the time when the decrees were passed.

The authorities, as was pointed out in the order of reference, are not reconcilable, and I shall at first proceed to discuss the question without any reference to the authorities.

The word “judgment-debtor” has been defined in section 2(10) of the Code of Civil Procedure as “any person against whom a decree has been passed or an order capable of execution has been made”. For purposes of section 73, “judgment-debtor” therefore means any person against whom a decree has been passed, and we are not concerned with any order capable of execution. Bearing that definition in view and bearing also in mind what I have said before that the wordings of the present section 73 emphasise the stage when the decrees care passed and have no relation to the execution stage, it would be fairly obvious that the two decrees, namely decree No. 59 of 1930 and decree No. 620 of 1931, have not been passed against the same judgment-debtor. Becree No. 59 of 1930 has been passed against Bishambhar Sahai; decree No. 620 of 1931 has been passed against Navin Chandra personally and against the assets of Bishambhar Sahai in the hands of Navin Chandra and Abinash Chandra. It is true that at the execution stage decree No. 59 of 1930 became a decree against the assets of Bishambhar Sahai in the hands of Navin Chandra and Abinash Chandra, but that to my mind is of no importance.

Looking at decree No. 620 of 1931 it cannot be said that Bishambhar Sahai is the judgment-debtor, for it is not possible to hold that Bishambhar Sahai was on the record in this suit as he was dead when the decree was passed. It is possible to say that when a person is sued in a representative capacity he represents some other persons also, for instance, a Hindu father may be sued in a representative capacity and then it may be held that his sons in existence were also sued through him, and although the sons' may not be on the record as judgment-debtors by name they may also be considered as judgment-debtors, but no principle of representation or legal fiction can be invoked in aid to resuscitate a dead man and I cannot hold that Bishambhar Sahai was a judgment-debtor, in decree No. 620 of 1931.

Looking at decree No. 59 of 1930 it is not possible to say that the assets of Bishambhar Sahai in the hands of Navin Chandra and Abinash Chandra is the judgment-debtor there or that Navin rihandra and Abinash Chandra to the extent of the assets in their hands are judgment-debtors in decree No. 59 of 1930.

I am prepared to concede that all the judgment-debtors in each of the several decrees need not identically be the same and it is sufficient if there is one judgment-debtor common to all the decrees, and thus where Y gets a decree against A and B, and X gets a decree against B and C, the two decrees are against the same judgment-debtor B and rateable distribution can be claimed with respect to the assets of B held by the court, but this concession is not by reason of any strain on the language of section 73. Nor do I in any way strain the language when I agree with what has been held in some cases that a decree against A personally and a decree against A as the trustee of X are not decrees against the same judgment-debtor. In the illustrations that I have given above I have paid due regard to the fact that a judgment-debtor has been defined as a person and section 73 requires an identity of judgment-debtors or persons. In one case the identity so far as one of the judgment-debtors is concerned is the same and the section does not say that the identity of the group of judgment-debtors should be the same in the other case where the decrees are by name against the same judgment-debtor their responsibility, their capacity (paying no regard whatsoever to the property that can be seized in execution) is not really the same. Further, when I apply the principle of representation as in the case of a Hindu father I am not in any way straining the language of section 73.

I now propose to discuss the authorities cited before us. The case of Bithal Das v. Nand Kishore is of importance only to this extent that in it Strachey, C.J, attempts to state the objects of section 295. He says: “The first object is to prevent unnecessary multiplicity of execution proceedings, to obviate, in a case where there are many decree-holders, each competent to execute his decree by attachment and sale of a particular property, the necessity of each and every one separately attaching and separately selling that property. The other object is to secure an equitable administration of the property by placing all the decree-holders in the position I have described upon the same footing, and making the property rateably divisible among them, instead of allowing one to exclude all the others merely because he happened to be the first who had attached and sold the property.” I have no doubt whatsoever that these were the objects of section 295 of the code of Civil Procedure of 1882 and are also the objects of section 73 of the Code of Civil Procedure of 1908, but these objects, when we are considering a particular case, must be attainable on a fair interpretation of the language employed in section 73 and not by means of altering or enlarging it. When the words are capable of only one meaning a court of law is not at liberty to speculate on the object of the legislature and to construe the words according to its own ideas of what ought to have been enacted. Nothing would be more dangerous than to make the object of the legislature a ground for construing an enactment which in itself is unambiguous. “I cannot doubt”, says Lord Campbell in Coe v. Laxurance, “what, the intention of the legislature was in passing this clause, but that intention has not been carried into effect by the language used…. it is far better that we should abide by the words of a statute than seek to reform it according to the supposed intention of its framer.” The language of a statute should not be strained to make it applicable to a case to which it does not on its terms apply, by invoking considerations of the supposed intention of the legislature. The objects of section 73 were truly stated in Bithal Das's case, but it is of great importance to note that before we reach the stage of attachment and sale of a particular property and make it rateably divisible among several decree-holders the essential condition is that the decree-holders must have obtained their decrees against the same person, and it may become a matter of no importance that by reason of the dead of the judgment-debtor in one decree the property that can be seized in execution in both the decrees happens to be the same. If the two decrees were not against the same person, section 73 of the Code of Civil Procedure would not be applicable.

In Bhola Nath v. Maqbul-un-nissa the learned Judges refused to apply the provisions of section 295 in the case of two decrees obtained not against the same judgment-debtor occupying the same capacity. Stanley C.J, observed: “The decree obtained by the respondent is a decree against Yakub Husain as representative of her deceased husband, whilst the decree obtained by the appellant is against Yakub Husain in his personal capacity.”

In Lal Singh Nayal v. Jiwanand Collister, J., held that “A decree obtained against the father of a joint family and a decree obtained after his death against his sons upon a promissory note executed by them in respect of a debt of their father are not decrees passed against the same judgment-debtor; and holder of decree against the son is not entitled to get rateable distribution under section 73 in the sale proceeds of the family estate in execution of the decree against the father; and the court cannot invoke any inherent powers outside the provisions of that section.” The facts of this case are very similar to the facts of the case before us, and I am in general agreement with the views expressed by the learned Judge.

The decisions of the Allahabad High Court, therefore, to my mind, support the view taken by the courts below.

Coming to the Calcutta cases, the first one that has been cited before us is the case of Hart v. Tara Prasanna Mukherji, where the learned Judges at page 728 make certain observations which might seem to enlarge the scope of section 295 of the Civil Procedure Code. The observations are: “The decree in the plaintiff's suit on his mortgage was against Harish Chunder Ghose and Brajendrabala Dasi ‘personally’, and the decree in the defendant's suit directed Harish Chunder Ghose personally and Brajendrabala Dasi out of the estate of Panchanun Ghose to pay the amount decreed, and it is argued that decrees against a defendant personally, and against the same defendant in a representative capacity, are not decrees ‘against the same judgment-debtor’ and that therefore the plaintiff is not entitled to ask for a rateable distribution of assets between himself and the defendant. As we are of opinion that the suit must be dismissed as premature, it is not necessary to decide this point, but, if it was necessary, we should decide it in favour of the plaintiff.” Their Lordships were considering the cases of the judgment-debtor “Brajendrabala Dasi personally” and “Brajendrabala Dasi out of the estate of Panchanun Ghose” and they seemed to be inclined to the view that the two judgment-debtors were the same. Later cases have doubted the correctness of what might be considered to be the inclination of the learned Judges, but this case does not in any way help the appellant inasmuch as the names of the two judgment-debtors in the two decrees were the same, namely Brajendrabala Dasi, and, if anything, these observations attached very great importance to the name of the judgment-debtor and not his capacity. In Balmer Lawrie & Co. v. Jadunath Banerjee, Mookerjee and Beachcroft, JJ., held that “It is essential for the application of the section (73) that the decrees should have been passed against the same judgment-debtor. This has been made clear beyond possibility of dispute by the introduction of the word ‘passed’ which did not find a place in section 295 of the Code of 1882.” Section 73 of the Code of 1908 was held to be inapplicable in the case where one of the decrees was passed against Dasarathi Mukherjee personally and the other decree was passed against a firm of which Dasarathi Mukherjee was a partner. In Jahar Lal v. Lalita Sundari, Rankin, C.J, was of the opinion that the undoubted requirement of section 73, a requirement which must be satisfied before a person is entitled to a rateable distribution, is that the two decrees must have been passed against the same judgment-debtor, and where A obtained a money decree against N in respect of money which he had lent to N's husband in his lifetime and where after the death of N, L was substituted as her legal representative and later when R got a refit decree against L in respect of certain lands and R's decree was enforced first by sale, it was held that A could not apply for rateable distribution because the principal requirement of section 73 was not satisfied. The cases of Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.*, and Srinivasa Aiyangar v. Kanthimathi Ammal were quoted with approval and followed. In Hemlata Dasi v. Bengal Coal Co., a decree was obtained by one person against R and the other decree was against the sons of R. Nasim Ali and Henderson, JJ., said that section 73 was not applicable. Nasim Ali, J., said that “section 73 of the Code of Civil Procedure permits rateable distribution only when the decrees are against the same judgment-debtor. Section 146 cannot enlarge the scope of section 73 as it is expressly made subject to the other provisions of the Code. By reason of section 146 the words ‘passed against the same judgment-debtor’ in section 73 cannot be read as ‘passed against the same judgment-debtor or the legal representatives of the same judgment-debtor’. An executing court cannot go behind the decree and by invoking section 146 it cannot change a decree passed against Rasaraj into a decree against his legal representatives.”

Section 146 of the Code of Civil Procedure undoubtedly prescribes that when any proceedings may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him, but it is prefaced by the words “Save as otherwise provided by this Code or by any law for the time being in force” and the condition in section 73 of the Code itself that the decree must be passed against the same judgment-debtor is a provision which stands in the way of the application of section 146. Section 146 may be invoked in aid by the representatives of decree-holders or judgment-debtors when any proceeding is to be taken or any application is to be made, but when we are considering section 73 we have got to be satisfied that the condition precedent, which is not a matter of procedure, has been complied with. Applying this reasoning it is clear that the decree against Bishambhar Sahai in the case before us cannot be changed into a decree against Navin Chandra and Abinash Chandra to the extent of the assets of Bishambhar Sahai. In Hemendra Nath Chaudhuri v. East Bengal Commercial Bank Nasim Ali and Henderson, JJ., held: “Where in one decree the judgment-debtors are described as ‘On the death of X, his sons and heirs A, B, C and D’ and in the other decree they are merely described as ‘A, B, C and D’, all the decrees are against the same judgment-debtors and rateable distribution should be ordered.” Their Lordships quoted with approval the cases in Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.*, Srinivasa Aiyangar v. Kanthimathi Animal, and Balmer Laxorie & Co. v. Jadunath Banerjee, and after discussing these cases came to the conclusion that both the decrees were against the same judgment-debtor, and there can be no doubt that the decrees were passed against the same judgment-debtor. In one suit X had died during the pendency of suit and his sons and heirs A, B, C and D were brought on the record during the pendency of the suit and the decree was passed against A, B, C and D. The other decree was of course passed against A, B, C and D.

The Calcutta view, therefore, is also in favour of the respondents. I omitted, however, to mention the case of Nilmani Dey v. Hiralal Das, where it appears that Mookerjee and Beachcroft, JJ., held that when two decrees were obtained against the estate of a deceased testator, each obtained against two out of three executors, and where one of these two executors was common to the two suits, the decree-holders were entitled to rateable distribution of the assets of the deceased testator under section 73 of the Code of Civil Procedure. They were of the opinion that a narrow construction should not be put upon the terms of section 73 so as to defeat the ends of justice. It is of some importance to note that the executors were not personally liable under the two decrees in any manner and it might have been permissible under those circumstances to look to the estate of the deceased testator whose executors they were and thus arrive at the conclusion that the decrees were against the same judgment-debtor, but there can also be no doubt that one of the executors was common in both the decrees. With the exception of this case, which might be said to support the appellant to a certain extent, all the other cases help the respondents.

I now come to the Bombay cases. In Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.* the facts were that one Mohoniraj obtained a money decree against one Bhau Babaji, who died shortly afterwards. His son Kashinath, as his legal representative, was then placed on the record and the property of the deceased judgment-debtor Bhau Babaji was then attached and sold in execution. Meantime the applicant Govind Abaji had obtained a decree against “Bhau Babaji, deceased, by his son Kashinath and against the estate of Bhau Babaji, deceased” and he applied under section 295 of the code of Civil Procedure to share rateably in the proceeds of the sale held in execution of the other decree. Jenkins, C.J, and Chandavarkar, J., by separate judgments held that the application should be refused. Jenkins, C.J, pointed out that the fact that one of the decrees was expressed to be against Bhau Babaji Jangam deceased by his son Kashinath made no difference and this was due to the erroneous practice which prevailed in the mufassil courts according to which a dead man was expressed to be a party to the suit by his heirs. He said: “It is useless to speculate as to any other test than that which the section itself, provides, and that test is stated in the plainest terms. So far as the present case goes, it is enough to say that the money decrees must be against the same judgment-debtor. Here, however, one decree is against Bhau Babaji Jangam and the other is against his son Kashinath…. The interpretation of ‘judgment-debtor’ in section 2 and the phraseology of section 234 of the Code of Civil Procedure leave no doubt on the point.” Chandavarkar, J., laid emphasis on the definition of the term judgment-debtor and pointed out that “a decree obtained against A while he is alive and a decree against B after A's death, as A's legal representative, are not against one and the same judgment-debtor. Section 234 provides for the execution of a decree where that execution is sought after the judgment-debtor's death. It is the deceased in that case who is, according to the terms of that section, the ‘judgment-debtor.’ Where, on the other hand, a person is sued from the beginning as the legal, representative of a deceased person, the person so sued, is the defendant;…. the decree is passed against him, and he is therefore the judgment-debtor.” He laid stress on the fact that “section 295 does not make the nature of the liability under the decrees contemplated by it one of the essential conditions for the application of the section.” There is then the case of Chunilul Raichand v. Broach Urban Co-operative Bank The facts of this case were that the petitioner Chunilal obtained a money decree against one Jorbhai and later another person obtained a decree against the widows of Jorbhai to recover money owned by Jorbhai and in execution of this latter decree Jorbhai's property was sold by the court and before the assets were realised the petitioner applied to the court for rateable distribution. It was held that the petitioner could not be allowed rateable distribution under the provisions of section 73 of the Code of Civil Procedure. For the petitioner the Full Bench case of the Madras High Court in Rama Krishnan Chettiar v. Viswanathan Chettiar was cited, but their Lordships were of the view that the Madras interpretation was not justified by the words of the section. These are the only two cases that were cited before us from Bombay and both of them support the respondents.

I now come to the Madras cases, and there the decisions are not uniform. The facts in the case of Ramanathan Chettiar v. Subramania Sastrial were that there was a decree of judgment-creditor No. 2 against the father, and another decree of judgment-creditor No. 1 against the father and son, and it was admitted that the property from which the assets were realised by sale was the ancestral property of the family of which the father and the son were undivided members. It was-held that the decrees were against the same judgment-debtor for the purposes of section 295. If the facts are as I have stated above, the father is the common judgment-debtor in both the decrees and the decrees would, therefore, be against the same judgment-debtor under section 295 of the Civil Procedure Code of 1882 or section 73 of the Code of Civil Procedure of 1908 and rateable distribution could be allowed. In the case of Srinivasa Aiyangar v. Kanthimathi Ammal, the facts were that A obtained a decree against one. Maruthamuthu Pillai, and subsequently B obtained a decree against the legal representatives of Maruthamuthu Pillai and his estate in their hands. B applied under section 295 of the code of Civil Procedure to share rateably in the proceeds of property sold in execution of A's decree, and it was held that B was not entitled to do so. It is true that the earlier case in Ramanathan Chettiar v. Subramania Sastrial was not cited before their Lordships, but as I have explained above that case does not, to my mind, help the appellant. In Rama Krishnan Chettiar v. Viswanathan Chettiar a Full Bench of the Madras High Court held a view which supports the appellant. Pandrang Row, J., who delivered the principal judgment was of the opinion that a strict literal construction of the expression “the same judgment-debtor” in section 73 of the Code of Civil Procedure in the sense that the decrees must be against the same persons eo nomine should not be adopted and the decrees that were capable of execution against the same estate may without unduly straining the language of section 73 of the Code of Civil Procedure be regarded as passed against the same persons. This case was followed in Swaminatha Ayyar v. Saiv Rowthan and Palaniappa Chettiar v. Palani Goundan by a learned single Judge but he obviously had to follow the decision of the Full Bench. Pandrang Row, J., was of the opinion that in certain cases a literal construction of section 73 has not been adopted because it has been held that although the person against whom the decrees were passed is the same in name section 73 did not apply unless that person occupied the same character in all the decrees and it has also been held in other cases that all the judgment-debtors in each of the several decrees need not be identically the same and that it is sufficient if there is one judgment-debtor common to all the decrees; but, as I have pointed out in an earlier portion of my judgment, the decisions in these two classes of cases have not been obtained by straining the language in any manner and afford no justification therefore for holding the view that the plain meaning of the section ought to be ignored and the personality, the character and the capacity of the judgment-debtor is to be ignored and undue preference is to be given to the property from which the assets are realised. The Full Bench case of the Madras High Court was, however, considered by the learned judges of the Bombay High Court in Chunilal Raichand's case, and not followed. It was also not followed by Collister, J. of this Court in Lal Singh Nayal's case.

I hold the view that if the law as laid down in section 73 is to be interpreted and if we pay due regard to the restricted language used therein, the decision arrived at by the court below is the correct decision and the weight of authority, as I have pointed out, is entirely in favour of the respondent. I would, therefore, dismiss this appeal.

Verma, J.:— The principal question involved in this case is one relating to the proper construction of section 73 of the Code of Civil Procedure. The case has been referred to a Bench of three Judges as the Division Bench before whom it originally came up for hearing found that there was a wide divergence of judicial opinion with regard to the proper interpretation of the language employed by the legislature in that section and in the corresponding section of the Code of 1882; viz., section 295.

The essential facts are these. One Bishambhar Sahai a Hindu governed by the Mitakshara, executed a promissory note in favour of the plaintiff appellant and borrowed a certain sum of money. The appellant instituted suit No. 59 of 1930 against Bishambhar Sahai in respect of that transaction and a decree was passed in his favour for the recovery of Rs. 10,561. Before the decree could be executed Bishambhar Sahai died. The appellant, then took out execution of the decree against the sons of Bishambhar Sahai, namely Navin Chandra and Abinash Chandra, in accordance with the provisions of section 50, read with section 53 of the Code, and prayed for the attachment and sale of certain family property which was in the possession of the sons, and the attachment was made on the 7th of May, 1931. Shortly afterwards a suit, being suit No. 620 of 1931, was filed by one Makhan Lal against Navin Chandra and Abinash Chandra for the recovery of a certain sum of money on the basis of a promissory note executed by Bishambhar Sahai deceased and his elder son Navin Chandra. This suit was decreed as against Navin Chandra personally and as against both Navin Chandra and Abinash Chandra to the extent of the family property in their hands. Makhan Lal applied for execution of his decree to the same court in which the execution of the appellant's decree was pending and had the same properties attached as had been attached on the application of the appellant. The attachments in execution of Makhan Lal's decree were made on the 2nd and the 3rd of December, 1931. Sales were held in execution of Makhan Lal's decree on the 18th of March, 1932, when one Babu Lal purchased a portion of the property for Rs. 1,325, and on the 29th of March, 1932, when Makhan Lal himself purchased the remaining property in lieu of Rs. 1,415. Babu Lal having deposited in court the sum of Rs. 1,325 in accordance with the provisions of the Code, Makhan Lal applied that the same be paid over to him and obtained payment on 26th October, 1932. So far as the purchase made by Makhan Lal himself was concerned, the purchase money, namely the sum of Rs. 1,415, was set off against the amount due to him on the decree and satisfaction of the decree was entered up to that extent. This also took place in 1932. Makhan Lal thus received a total sum of Rs. 2,740 in execution of his decree. On 6th October, 1933, the appellant applied for rateable distribution under the provisions of section 73 of the Code. The execution court disallowed his application in August, 1934. The appellant thereupon, in October, 1935, instituted, under sub-section (2) of section 73, the suit which has given rise to this appeal. His claim was that he was entitled to a sum of Rs. 2,061, and Rs. 493-8-0 as interest from 6th October, 1933, to the date of the institution of the suit at 1 per cent, per mensem, total Rs. 2,554-8-0, as his rateable share out of the amount realised by Makhan Lal. As Makhan Lal had died before the institution of the suit, the appellant impleaded his sons and grandsons as defendants 1 to 13, and claimed that he was entitled to a decree for the realisation of the sum of Rs. 2,554-8-0 from the estate of Makhan Lal deceased which, he alleged, was in the possession of defendants 1 to 10. He averred that, as far as he knew, defendants 11 to 13 were not in possession of any portion of the estate of Makhan Tal, and that they were therefore impleaded as defendants pro forma. He also impleaded Navin Chandra and Abinash Chandra, the sons of Bishambhar Sahai, as defendants 14 and 15, pro forma.

The suit was contested by defendants 1, 5, 8, and 30 who raised questions of jurisdiction, limitation, estoppel and acquiescence. They further pleaded that the plaintiff was not entitled to rateable distribution for certain reasons, one of which was that the decrees of the plaintiff and of Makhan Lal had not been “passed against the same judgment-debtor”. It was also alleged that in any event the plaintiff was not entitled to the amount claimed and that he should in no case be allowed any interest.

The pleadings gave rise to a number of issues. The learned Munsif who tried the suit decided the issues of jurisdiction, limitation, estoppel and acquiescence in favour of the plaintiff. He further held that if the plaintiff was entitled to rateable distribution he was entitled to the amount he would have got on the date on which the assets realised in execution of Makhan Lal's decree should have been distributed and that subsequent events could not be taken into account. He also held that two of the three grounds on which the defendants based their plea that the plaintiff was not entitled to rateable distribution were untenable. He held, however, that the decrees of the plaintiff and of Makhan Lal were not passed against the same judgment-debtor, and that, therefore, the plaintiff had no right to claim a share by rateable distribution in the assets realised by execution of Makhan Lal's decree. Having arrived at that conclusion, the learned Munsif did not decide the, question whether the plaintiff was entitled to any interest. In the result; the suit was dismissed. The plaintiff appealed and the lower appellate court agreed with the trial court in holding that the two decrees in question had not been passed against the same judgment-debtor within the meaning of section 73 of the Code. The appeal was accordingly dismissed without any expression of opinion on the part of the lower appellate court on the other questions that had been raised. The plaintiff has filed this second appeal and the only question that arises for consideration is whether the decision that the plaintiff was not entitled to claim rateable distribution, for the reason that the two decrees had not been “passed against the same judgment-debtor” within the meaning of section 73, is correct.

The answer to the question thus raised depends on the construction to be placed on section 73. Questions relating to the proper construction of that section, as well as of the corresponding section of the Code of 1882, have occupied the attention of several High Courts, in India in a number of cases, many of which have been cited at the Bar. As my brothers Iqbal Ahmad and Bajpai are, going to deal exhaustively with these cases, I do not propose to discuss them in detail. On the specific question that arises before us there is a sharp-conflict of opinion between the High Courts of Bombay and Madras. The Bombay view is to be found in the cases of Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.* and Chunilal Raichand v. Broach Urban Co-operative Bank, and the Madras view in the Full Bench case of Rama Krishnan Chettiar v. Viswanatkan Chettiar. Broadly speaking, the view of the Bombay High Court is that the words of the section should be taken literally and that the moment you find that the suits, in which the two decrees were obtained, were not filed against the same individual or individuals as defendant or defendants, you must hold that the decrees were not against “the same judgment-debtor”. The facts in Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.* were identical with those of the case before us, the only difference being that in that case the assets had been realised in execution of the decree of the person whose position corresponded with that of the appellant before us, and the applicant for rateable distribution was the person whose position corresponded with that of Makhan Lal in this case. That difference can have no effect on the decision of the question of law. Jenkins, C.J, considered it “enough to say that the money decrees must be against the same judgment-debtor” and that in the case before him one decree was against the father and the other was against the son. The circumstances that the debts of both the creditors had been incurred by the father, that one of the creditors had to bring his suit against the son because the father had died before the institution of the suit, leaving property which was in the possession of the son, and that the decree against the son was that the amount due be realised from the assets of the father in the hands of the son, were not considered to be of any importance. Chandavarkar, J., delivered a longer judgment, agreeing with the conclusion arrived at by the learned Chief Justice. He referred to certain provisions of the Code and held that the test laid down by the learned Chief Justice was the true test. The real basis of the decision is to be found in the following sentences which occur in the judgment of Chandavarkar, J.: “The decree obtained by the present applicant is against Bhau Babaji Jangam, deceased, by his son and heir Kashinath. Can it be said to be a decree against Bhau Babaji? It is a decree passed against Bhau's legal representative, whereas Are decree obtained by the opponent Mohohiraj was against Bhau himself. It cannot be said, therefore, looking to the names of the parties, that the two decrees are against the same judgment-debtor. It is true that the estate that is liable in the case of both the decrees is the estate of the deceased Bhau, but section 295 does not make the nature of the liability under the decrees contemplated by it one of the essential conditions for the application of the section.” (The italics are mine). After considering certain sections of the Code, the learned Judge makes these observations in the concluding paragraph of his judgment: “Applying these considerations to this case before us, it is obvious that the decree obtained by the present applicant was against Bhau's son and heir, Kashinath, who must be regarded as his ‘judgment-debtor’, whereas the decree obtained by the opponent was against Bhau as his judgment-debtor. The opponent by bringing Kashinath as the legal representative of Bhau on the record in his execution proceedings and obtaining an order for execution as against Kashinath as such representative, has no doubt made him his ‘judgment-debtor’, according to the definition of that term in the Code. But though that order obtained by the opponent and the decree obtained by the present applicant are against the same ‘judgment-debtor’ (i.e Kashinath), yet the decree of the former is against Bhau, whereas the decree of the latter is against Kashinath, and it is the decrees and not the orders passed in execution which form the test for a rateable distribution under section 295 of the Code.”

It seems to me that Pandrang Row, J., is perfectly correct, if I may say so with respect, in describing this, in his judgment in the Full Bench case of Rama Krishnan Chettiar v. Viswanathan Chetiar, as the eo nomine construction of the section.

In Chunilal Raichand v. Broach Urban Co-operative Bank the facts are absolutely identical with those of the case before us. The learned Judges who decided that case preferred the view expressed by their own Court in Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.* to the view of the Full Bench of the Madras Court in Rama Krishnan Chettiar v. Viswanathan Chettiar. Barlee, J., observed: “In the present case the petitioner obtained a decree against one Jorbhai and after his death defendant No. 4, the Broach Urban Co-operative Bank, obtained a decree against the widows of Jorbhai to recover money due to the bank by Jorbhai. Therefore the two decrees were not passed against the same judgment-debtor and the position is exactly the same as that in Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.*.” The learned Judge then quotes two passages from the judgment of Pandrang Row, J., in the Madras Full Bench Case, one in which it is said that in neither of the two cases, Govind Abaji v. Mohoniraj and Srinivasa v. Kanihimathi, was any reference made to the objects of section 73 of the Code, and the other in which a reference is made to Nilmani Dey v. Hiralal Das(5) and it is observed that in that case the fact that both the decrees were capable of execution against the same estate was held to be a sufficient reason for concluding that the decrees might without unduly straining the language of section 73 of the Code be regarded as passed against the same judgment-debtor, and says: “This view had been considered but discarded in our Court.” Having thus disposed, of the judgment of Pandrang Row, J., and rejected his view, not on the ground that there was any inherent unsoundness in it, but on the ground that it had been considered and discarded by the High Court of Bombay, Barlee, J., proceeds to consider the judgment of Cornish, J., in the Madras Full Bench case. He quotes a passage from the judgment of Cornish, J. where it is stated that the liability of the legal representative under the decree, whether he has been brought on record before decree or whether execution is made after the judgment-debtor's death, is limited to the extent of the deceased's assets which have come into his hands and which have not been duly distributed by him, and that the notion underlying these principles is that the legal representative takes the place of the deceased and is under the obligation which lay upon the deceased of paying lawful claims against the deceased out of the deceased's assets. Barlee, J., observes that “This is no doubt correct, but hardly relevant” and proceeds: “It explains why the legislature should have provided for a case of this sort. But the fact remains that section 295 of the code of Civil Procedure did not provide for a case of this nature. It provided for one case only, where there are two or more decrees passed against the same judgment-debtor; and though after that decision, which was delivered in 1901, the Civil Procedure Code of 1882 as repealed and re-enacted and Sir Lawrence Jenkins himself was a member of the Special Committee on the Bill, the legislature neglected to take the opportunity of changing the words of the section.” But that is the whole question. Did the legislature, when it enacted section 295 of the Code of 1882, deliberately intend to exclude from its operation a case in which, owing to the person who had incurred the debt dying before the institution of the suit, the creditor has to file it against the legal representative, or in which, owing to the judgment-debtor dying after the passing of the decree but before the decree being executed the creditor decree-holder has to take proceedings in execution against the legal representative? I should also like to observe, with great respect to the learned Judges who decided the case of Chunilal Raichand v. Broach Urban Co-operative Bank, that the fact that Sir Lawrence Jenkins, who had delivered a short judgment in the year 1901 expressing a certain opinion with regard to the interpretation of section 295 of the Code of 1882, was a member of the Special Committee on the Bill which ultimately emerged as Act V of 1908 is not a relevant consideration in construing section 73 of the Code of 1908. Barlee, J., concludes his judgment in these words: “In my opinion the Madras interpretation is not justified by the words of the section, and since the legislature has not cared to amend it, we must accept it as it is unamended, and must follow the case of Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.*. Thus, the basis of Barlee, J.'s decision is that the High Court of Bombay had taken a certain view as to the interpretation of section 295 of the Code of 1882, that in spite of the expression of that view the section had not been amended when the Code of 1908 was enacted in place of the Code of 1882, and that therefore the view expressed by the Bombay Court in Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.* was binding on that Court. The question thus remains whether the view expressed in Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.* on the interpretation of section 295 of the Code of 1882 was correct. The fact that the language of the section was not altered when the Code of 1908 was enacted does not necessarily lead to the conclusion that view is correct. There is no justification for the assumptions underlying such a conclusion. Tyabji, J., who was the other member of the Bench which decided the case of Chunilal Raichand v. Broach Urban Co-operative Bank, discards the reasoning of the Full Bench of the Madras High Court on the ground that, in his opinion, it amounted to an unjustifiable expansion of section 73 and that “the courts have no jurisdiction to expand in this manner a legislative provision such as section 73.” He accepts the view expressed in the earlier Bombay case, Govind Abaji Jakhadi…Applicant; v. Mohoniraj Vtnayak Jakhadi…Opponent.*, as correct. The question, which we have to consider, thus, resolves itself into this. Should we accept the Bombay view, namely that a strict literal construction should be placed on the expression “the same judgment-debtor” in the sense that the decrees must be against the same person eo nomine, or should that construction be rejected as too narrow?

Now, it is beyond question that the view that a strict literal construction should be placed on the section has not been accepted in a number of cases arising out of a variety of circumstances. The very expression “the same judgment-debtor” was the subject of interpretation in the Full Bench decision of the Calcutta High Court in Gonesh Das Bagria v. Shiva Lakshman Bhakat. The question that arose in that case was whether two decrees, one of which was against X, Y and Z, and the other was against X and Y only, could be said to be against “the same judgment-debtor” within the meaning of the section. The answer given by a Full Bench of five Judges was in the affirmative. The case had been referred to a Full Bench by a Division Bench consisting of Maclean, C.J and Banerjee, J., and the learned Chief Justice in his referring order mentioned the case of Dehoki Nundun Sen v. Hart, as a case in which a contrary view had been taken, and observed: “If the language of the section be absolutely clear, the circumstance that such a construction as was put upon it in that case may lead to injustice or to anomaly or to hardship could not prevent us from putting such construction upon it. But looking at the whole of section 295, and especially to that portion of it which deals with the distribution of the assets, where it speaks of ‘the judgment-debtor’ not using the expression ‘the same judgment-debtor’, and to the equitable distribution which is aimed at by the section, I am disposed to think that the construction put upon it by the case of Dehoki Nundun Sen v. Hart is too narrow.” The learned Chief Justice is referring to the fourth paragraph under clause (c) of the proviso to the section, Banerjee, J., in his referring order states: “That it is not necessary that the decrees should be against identically the same judgment-debtors is clear from the cases of Shumbhoo Nath Poddar v. Luckynath Dey, and of Sarat Chandra Kundu v. Doyal Chand Seal, and I do not think that the language of section 295 requires that the judgment-debtors in the two decrees should be identically the same.” Banerjee, J., was not a member of the Full Bench, but the learned Chief Justice was, and the principal judgment of the Full Bench was delivered by him. In that judgment he observes as follows: “I was a member of the Court which referred the case, and for the reasons which I gave in my judgment, which it is unnecessary to repeat, and also for those which are very clearly stated by my colleague Mr. Justice Banerjee, I consider that the question ought to be answered, as we then answered it, in the affirmative.” Prinsep, Sale, Stevens, and Geidt, JJ., concurred in this view. The facts of the case were no doubt slightly different from those of the case before us, but the principle accepted by six learned Judges was that a strictly literal construction should not be placed upon the section and that, in construing it, its main object, namely an equitable distribution, should not be lost sight of.

It will be convenient at this stage to quote a passage from the judgment of Sir Arthur Strachey in the case of Bithal Das v. Nand Kishore, in which the learned Chief Justice explains the object of the section: “…The object of the section is two-fold. The first object is to prevent unnecessary multiplicity of execution proceedings, to obviate, in a case where there are many decree-holders, each competent to execute his decree by attachment and sale of a particular property, the necessity of each and every one separately attaching and separately selling that property. The other object is to secure an equitable administration of the property by placing all the decree-holders in the position I have described upon the same footing, and making the property rateably divisible among them, instead of allowing one to exclude all the others merely because he happened to be the first who, had attached and sold the property.” I am not losing sight of the fact that the question which arose for decision in that case and the facts out of which it arose were different. But the remarks of the learned Chief Justice as to the objects with which the section has been enacted are perfectly general and, if I may say so with respect, are in my opinion perfectly correct.

Another case in which the strict literal construction of the expression ‘the same judgment-debtor’ was not adopted is that of Bhola Nath v. Maqbul-un-nissa. It is a converse case to the one before us. The plaintiff respondent in that case had, on the death of her husband Said-ud-din, obtained a decree for her dower against Said-ud-din's son and heir, Yaqub Husain, and had, in execution of that decree, attached certain property which had belonged to Said-ud-din, and which had been inherited by and was in the possession of Yaqub Husain. The defendant appellant had obtained a money decree against Yaqub Husain in respect of a debt incurred by Yaqub Husain, and had in execution of that decree attached the same property. The plaintiff was granted a decree by the High Court for a declaration that she had priority in respect of the amount of her decree over the decree obtained by the defendant and that the defendant could only bring the property in suit to sale in execution of his decree subject to the plaintiff's rights under the decree obtained by her. The competition thus was between two decree-holders holding decrees against the same individual, but one of them was entitled to proceed, and to proceed only, against the property of the deceased which had descended to the individual against whom the decree had been obtained, and the other of them was entitled to proceed against the person and the property of the individual against whom he had obtained the decree. It was held that the decree-holder who was entitled to have her decree satisfied out of the assets of the deceased in the hands of the judgment-debtor was entitled to priority over the other decree-holder. At page 34 of the report the learned Chief Justice makes these observations: “I am not disposed to think that section 295 of the code of Civil Procedure, which directs in certain events rateable distribution of assets realised by sale in execution of a decree, if it were applicable, opposes any obstacle to the granting of the relief which the plaintiff seeks. The decree obtained by the respondent is a decree against Yaqub Husain as representative of her deceased husband, whilst the decree obtained by the appellant is against Yakub Husain in his personal capacity. The two decrees have not, in fact, been obtained against ‘the same judgment-debtor’.” Thus, although the two decrees were, eo nomine, against the same individual, they were held to be not against ‘the same judgment-debtor’ from the reason that the judgment-debtor held different capacities in the cases in which the decrees, had been obtained. It has been conceded before us that this is settled and sound law.

Another instructive case is that of Nilmani Dey v. Hiralal Das. In that case the learned Judges observe as follows: “What has happened in substance is that there are now two decrees against the estate, each obtained against two out of three executors. One of these two executors is common to the two suits. Each decree is prima facie capable of execution against the estate of the deceased testator. In these circumstances, we are of opinion that the two decrees, may, without unduly straining the language of section 73, be regarded as passed against the same judgment-debtor, namely, they are both decrees against the estate of Bhushan Chunder Bhar, in one case represented by A and B, in the other case by B and C. We may add that we are not disposed to put a narrow construction upon the terms of section 73, so as to defeat the ends of justice.” (The italics are mine).

The object of the section being as stated above, and it having been held in a number of cases arising out of a variety of facts that strict literal construction should not be placed upon the expression ‘the same judgment-debtor’, it seems to me that the reasoning of the learned Judges of the Madras High Court who decided the case of Rama Krishnan Chettiar v. Visioanathan Chettiar must be accepted.

The only other case to which I propose to refer is that of Lal Singh Nayal v. Jiwanand, in which on similar facts my brother Collister preferred the Bombay view to that expressed in the Full Bench decision of Madras. For the reasons indicated above I am unable to agree with my learned brother.

In my opinion, the decision of the lower appellate court on the only point which it has decided should be reversed. I would therefore allow the appeal, set aside the decree of the lower appellate court and remand the case to that court for decision of the points which remain to be decided.

By the Court:— The appeal is allowed, the decree of the lower appellate court is set aside and the case is remanded to that court for decision of the remaining issues arising in the case. No additional evidence will be allowed. After deciding the remaining issues that were pressed in the trial court and were decided by that court the lower appellate court will, if it finds that the plaintiff is entitled to a decree, pass a decree in the plaintiff's favour for such amount as he may be entitled to. Costs here and hitherto will be costs in the cause and will abide the, result. The court fee paid by the appellant in this appeal will be refunded to him.