1. In this application the plaintiff Sank asks for an order that the General Manager, East Indian Railway, do pay to the plaintiff Bank the sum of Rs. 5,486 said to be payable to the defendant and for certain direction for costs and other charges.

2. Pursuant to certain overdraft agreements in writing made on 13th May 1941 and 10th June 1941, the defendant executed in favour of the plaintiff Bank two on demand promissory notes or Rs. 2,000 and Rs. 5,000 as and by way of security for due repayment with interest of advances to be made by the plaintiff Bank to the defendant on the overdraft account. The plain, tiff Bank advanced diverse sums on diverse dates on that overdraft account. These moneys are said to have been borrowed by the defendant for the purposes of executing certain contract works for the East Indian Railway. On 2nd July 1941 the plaintiff Bank advanced to the defendant Rs. 7,600 on the security of a cheque drawn by Messrs K. Puran Singh Dharamchand in favour of the defendant. That cheque was dishonored on presentation. As a result of the above dealing a sum of Rs. 14,870-11-7 became due to the plaintiff Bank. On 13th February 1942 the defendant agreed in writing to deposit with the plaintiff bank by way of security by 23rd February 1942 bills for Rs. 12,000 approximately in respect of works done by him for the East Indian Railway. The defendant having failed to deposit the bills in spite of that agreement and subsequent promises the plaintiff Bank on 6th March 1942, filed the present suit for the recovery of the sum of Rs. 14,870-11-7 with further interest and costs and on 19th March 1942 obtained an order for attachment before judgment of the moneys due by the East Indian Railway to the defendant. On 18th May 1942, an ex parte decree was passed in this suit for Rs. 15,019-6-9 with interest and costs. This decree directed the attachment issued pursuant to the order made on 19th March 1942 to continue.

3. It appears that on 2nd April 1942 one Lala Motiram filed a suit, being Suit No. 479 of 1942 against Sardar Bairam Singh and his 3 sons namely, Sardar Thakur Singh (the defendant in the plaintiff Bank's suit), Sardar Hardayal Singh and Sardar Pal Singh. The cause of action laid in the plaint in that suit may be shortly summarised as follows:

For several years prior to 23rd December 1941 Lala Motiram and the four defendants in that suit carried on business in partnership as contractors under the name and style of Messrs Bairam Singh Motiram upon certain terms set out in para. 2 of the plaint. Under this agreement Motiram was to advance as capital up to a limit of Rs. 50,000 and the defendants were to advance as capital upto Rs. 5,000, all such advances carrying interest at 9% per annum. The shares in the profit and loss were 6 annas for Motiram and 10 annas for the four defendants. Motiram advanced Rs. 40,500 to the partnership business. On 23rd December 1941, Motiram retired from the partnership business and the accounts were adjusted and Rs. 46,891 was found due to Motiram and the four defendants agreed to pay that sum to Motiram with interest at 12 per cent, per month out of the amount of the bills due and owing to the partnership in respect of works done by it. It was also agreed that if the full amount was not made up from those bills, then Motiram would be entitled to realise the balance of the money due to him from the person and property of all descriptions of those four defendants. This agreement was reduced into writing, an English translation whereof was filed with the plaint. It was alleged that there was due to Motiram the whole of that sum of Rs. 46,891 and Rs. 1148-12-9, being interest thereon, aggregating to Rs. 48,039-12-9. Motiram claimed payment of Rs. 48,039-12-9 with further interest, declaration of charge on the amount of the bills due to the partnership business, alternatively an account of what was due to Motiram under the partnership agreement and payment of the amount found due on taking of such accounts, appointment of a receiver and other incidental reliefs. It is clear that the four defendants in suit No. 479 of 1942 were sued as partners of the firm of Messrs Bairam Singh Motiram.

4. On 22nd April 1912 Motiram in his suit obtained an order appointing the Official Receiver as receiver not only of the amounts of bills due to the partnership but also of the amounts due by the East Indian Railway to the defendant in this suit who was one of the defendants in Motiram's suit and which latter amount had been already attached before judgment by the plaintiff Bank on 19th March 1942. This attachment, it will be remembered, was continued by the decree passed in this suit on 18th May 1942. On 11th June 1942 the plaintiff Bank was informed by Motiram's solicitors of the institution of Motiram's suit and of the order for appointment of Receiver in that suit.

5. On 15th June 1942 the plaintiff Bank obtained an order in this suit for the issue of a fresh writ of attachment of the sum of Rs. 12,000 said to be lying with the East Indian Railway to the credit of the defendant and the writ was duly issued and served on the General Manager of the East Indian Railway. It requested the latter to hold the amount until further order of the Court.

6. In view of the orders for attachments in this suit the East Indian Railway did not make over any sum to the Official Receiver who had been appointed Receiver in Motiram's suit.

7. Thereafter Motiram obtained a decree in his Suit No. 479 of 1942 on some date which does not appear on the affidavits before me. It is stated that after obtaining the decree Motiram proceeded to execute the same but died on 24th April 1945. Thereupon by an order made in that suit on 24th June 1943 the death of Motiram was recorded and liberty was given to his son Lala Ratanchand Sood to proceed with the execution of the decree.

8. In answer to the plaintiff Bank's solicitor's letter dated 18th June 1943 the Divisional Accounts Officer of the East Indian Railway on 29th July 1943 wrote a letter intimating that bills for Rs. 4304 had been passed for payment and bills for approximately Rs. 1181 were under preparation but had not been audited and passed.

9. On 3rd February 1944, the present summons was taken out by the plaintiff's solicitor for an order for payment of Rs. 6485 direct to the plaintiff Bank. The summons was served on Motiram's solicitors and the Official Receiver. Motiram's son and legal representative Lala Ratanchand Sood has appeared and filed an affidavit in opposition to this application.

10. The summons was moved before me on 22nd February 1944. I adjourned the matter and directed that copies of the summons and the ground in Support thereof be served on the East Indian Railway. This has been done. The East Indian Railway in answer to the plaintiff Bank's solicitor's letter intimating that the latter's clerk had been deputed to effect service as directed by the Court, informed the plaintiff Bank's solicitor that bills for works done by the defendant personally had been passed for Rs. 4304 and that certain other bills for approximately Rs. 1181 which had been stated in the previous letter dated 29th July 1943 to be under preparation had also been passed for Rs. 898 and that the total amount due to the defendant was Rs. 5202.

11. Mr. A.K Sen appearing for Lala Ratanchand Sood contended that as the Official Beceiver had been appointed Receiver in Suit No. 479 of 1942 on 22nd April 1942 the order for attachment made in this suit on 15th June 1942 without leave having been previously obtained in Suit No. 479 of 1942 was illegal and, therefore, the present application was wholly misconceived. This argument overlooks the fact that an order was made in this suit on 19th March 1942 for attachment before judgment before the order for appointment of Receiver was made in Suit No. 479 of 1942. By the decree made in this suit on 18th May 1942; the attachment was expressly directed to continue. It is not alleged that up to this date the plaintiff Bank had any knowledge of the filing of Suit No. 479 of 1942 or of the order made therein for appointment of Receiver. Although the Official Receiver had been appointed Receiver in Suit No. 479 of 1942 on 22nd April 1942, the Receiver did not take possession of the fund in question. When the plaintiff Bank obtained a fresh order for attachment on 15th June 1942 the fund was not in the hands of the Official Receiver. In all these circumstances it does not appear to me that the attachment was illegal for want of prior leave of Court. If anything the order for appointment of Receiver in Suit No. 479 of 1942 was subject to the attachment issued under order made in this suit on 19th March 1942.

12. Mr. Sen next contended that no order should be made for direct payment of the moneys to the plaintiff Bank but that the moneys should be paid into Court so as to be available for rateable distribution under Section 73 of the CPC, amongst all decree-holders who may have already applied or may yet apply for execution of their respective decrees against the same judgment-debtor before the receipt of assets. Mr. J.C Maitra appearing for the plaintiff Bank stated that no other decree-holder had applied for execution and the question was only as between the two decree-holders now before me. Moreover, I can safeguard the interests of other decree-holders, if any, who may have already applied for execution by insisting on the usual certificates from the Sheriff and the being filed before the order I may make on this application is drawn up. I do not feel called upon to take into account the decree-holders, if any, who have not applied for execution and make any order which may prejudice the diligent decree-holders before me.

13. Mr. Maitra pointed out — and it was not disputed by Mr. Sen before me — that the fund in question was the separate property of the defendant in this suit. The argument proceeded and my judgment is on this footing.

14. Mr. Maitra referred me to Section 49 of the Partner-ship Act, and contended that inasmuch as the fund in question was the separate property of the defendant it must first be applied in satisfaction of the separate creditors of the defendant before the creditors of the firm of which this defendant was a partner could claim any portion thereof and that, therefore, there could be no question of rateable distribution at all between the separate creditors and the creditors of the firm.

15. There is no doubt that the plaintiff bank is the separate creditor of the defendant in this suit. The question is whether Motiram was also a separate creditor of all the four defendants in his suit. Motiram and those four persons carried on business in partnership. Motiram advanced moneys as and by way of capital to the firm on interest payable by the firm. On 23rd December 1941, Motiram severed his connexion with the firm, accounts were adjusted and an agreement was entered into between Motiram and his four partners to which I have referred. The question arises as to what was the effect of this agreement. Was there a dissolution of the whole firm or was there only a retirement of Motiram, leaving the other partners to continue the firm? In the present Partnership Act, there is a difference between a retirement of a partner and a dissolution of the whole firm. Beading the agreement, an English translation of which is annexed to the plaint of Motiram, and that plaint, I am of opinion that it was a case of retirement of Motiram alone and the remaining partners took over the business and assets and created a charge thereon for the repayment of the amount found due to Motiram. I do not think on a construction of that agreement and the allegations in that plaint, it can be said that there was a dissolution of the whole firm. In this view of the matter Motiram certainly became a creditor of the four persons as partners in the firm which was continued by them. Assuming, however, that there was a dissolution of the whole firm what was the nature of the claim of Motiram against his four partners? His claim was for moneys advanced by way of capital to the firm, the firm being liable to pay interest thereon. He filed a suit against the four partners. The allegations in his plaint as a whole and in particular his claim for declaration of charge on the bills which were partnership properties and his alternative claim for accounts of what was due to him under the partnership agreement clearly indicate that he sued the four defendants as partners of the firm. The terms of the partnership agreement set out in his plaint, read in the light of the observations of their Lordships of the Judicial Committee in Nandkishore v. Official Receiver, Delhi, A.I.R (25) 1938 P.C 277 : (ILR 1939 KAR 8 PC), indicate that Motiram, as regards his advances, was a creditor of the firm. He sued the four defendants a? partners and obtained a decree against them. This decree must be regarded as one obtained by him against the four defendants as partners. Mr. Sen drew my attention to the latter part of the agreement and contended that as Motiram was entitled, in case his claim was not satisfied out of the bills charged in his favour, to realise the balance out of other properties of the four defendants, he became a separate creditor of those four defendants. I do not think that circumstance makes any difference at all, for a creditor of the firm has always that right, subject in certain cases, to the rights of separate creditors. Therefore, if there was only a retirement of. Motiram, which I think is the better view and which I hold it to be, Motiram was a creditor of the firm which was continued by this four partners and if there was a dissolution of the whole firm he got a decree against his four partners as partners of the dissolved firm, and in either case he was not a separate creditor of any of them in the ordinary sense of the term i.e, a creditor in respect of a debt unconnected with the firm.

16. Section 49 of the Partnership Act, 1932, reproduces with very slight verbal alteration the provisions of Section 262 of the Contract Act. This section appears to be a corollary to Sections 46 and 48 of the Partnership Act, and should be read along with them. The principles embodied in these sections are well known. They accord statutory recognition to the equitable lien of partners on partnership properties. All these sections are in chap. 6 of the Act which deals with dissolution of a firm. Indeed ss. 46 and 48 in terms refer to dissolution of a firm. The principles embodied in these sections, therefore, ordinarily come into play at the time of the winding up of the affairs of the firm on dissolution thereof. The same principles are applied in case of insolvency of a partner (S. 49(4), Presidency Towns Insolvency Act = Section 61(4) of the Provincial Insolvency Act) and also in the case of administration of the estate of a deceased partner. Here, however, there is no question of insolvency or death of any of those four partners. There is no pending proceeding for dissolution and winding up of the affairs of the firm. The question is: Do the principles embodied in Section 49 of the Partnership Act apply when the claims of particular creditors have gone out of the domain of contract and ripened into decrees? In other words, do the principles embodied in Section 49 of the Partnership Act, apply in execution proceedings?

17. Turning to the Code of Civil Procedure I find that O. 21, R. 49 to a certain extent gives effect to the principles embodied in Section 49 of the Partnership Act. Under this rule property belonging to a partnership cannot be attached or sold in execution of a decree other than, decree passed against the firm or against the partners in the firm as such. The separate creditor holding a decree against a partner otherwise than as a partner in the firm as such may only obtain an order charging the interest of such partner in the partnership property and profits with the payment of the amount due under the decree and may get an order appointing a receiver of the share of such partner in the profits or of any other money which may be coming to him in respect of the partnership and direction's for accounts and enquiries and sale of such interest. The net result is that the separate creditor decree, holder will in the end get what will remain in the share of his judgment debtor after satisfying the partnership debts and liabilities. This rule, therefore, gives effect to the first part of the principles embodied in Section 49 of the Partnership Act and regulates in execution proceedings the respective rights of separate creditor decree-holder and partnership creditor decree-holder in respect of partnership property.

18. It is pointed out by Mr. Sen in reply to Mr. Maitra's contentions that there is no such rule regulating the respective rights of the two sets of decree-holders in execution proceedings in respect of the separate property of the judgment-debtor. On the contrary under O. 21, R. 50, the partnership creditor decree-holder against a firm can execute his decree straightway against any property of the partnership or against the person or property of any partner who comes within cls. (b) and (c) of sub-r. (i) and he may, with the leave of the Court under sub-r. (2), proceed against any other partner who does not fall within cls. (b) and (e) of sub-s. (i). The separate creditor who is a decree-holder can execute his decree against separate property but there is nothing in the Code which entitles the separate creditor-decree-holder to say that in respect of the separate property his claim under his decree must be satisfied in full before the partnership creditor decree-holder will get anything out of the separate property. Therefore the separate property of a partner is equally available to his separate creditor-decree-holder and his partnership creditor decree-holder and therefore the question of rateable distribution under Section 73 of the CPC, arises. In this case the plaintiff Bank is a separate creditor of the defendant and has obtained a decree. If Motiram was also a separate creditor decree-holder, then there can be no doubt that if the fund be now paid into Court both the plaintiff Bank and the son and heir of Motiram who have already applied for execution will be entitled to rateable distribution. If, however, it be held that Motiram was a partnership creditor who obtained a decree against the 4 persons including the dependent as partners in the firm as such even then this property will be liable to be taken in execution of Motiram's decree although it is the separate property of one of his judgment-debtors. Both parties having already applied for execution against the same judgment-debtor, namely, the defendant in this suit, if the fund is now paid into Court S. 73 will come into play. To make an order for direct payment to the plaintiff Bank, will deprive Motiram's representative of his valuable right of participating in rateable distribution. Such is the argument of Mr. Sen, if I have understood him correctly. So put the argument is certainly attractive and requires careful consideration.

19. Order 21, R. 49 of the CPC, makes a clear distinction between a decree passed against a firm or against the partners in the firm as such and a decree passed against a partner otherwise than as a partner in the firm as such and prohibits attachment or sale of partnership property in execution of a decree other than a decree passed against the firm or against the partners in the firm as such. The rights of a separate creditor decree-holder are undoubtedly to this extent cut down, namely, that in execution of his decree the partnership property cannot be attached or sold; but is his right to share in a rateable distribution of assets held by the Court also taken away?

20. Rateable distribution of assets is dealt with by S. 73 of the Code, the relevant portion of which is as follows:

“73. (1) 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 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 rate distributed among all such persons.”

21. It is urged by Mr. Sen that this section is general in its terms and makes no distinction between the holder of a decree against the firm or against the partners in the firm as such and the holder of a decree against a partner otherwise than as a partner in the firm as such. It does not require that the application for execution should be against or in respect of the same property which or the sale proceeds whereof are held by the Court. All that is necessary is that decree-holders, in order to be entitled to participate in rateable distribution, should apply for execution before receipt of the assets. The argument is that it is quite true that a separate creditor decree-holder cannot in execution of his decree attach or sell partnership property but if partnership property is attached and sold in execution of a decree against the firm or against the partners in the firm as such and the sale proceeds are paid into Court and become assets held by the Court and if before receipt of such assets the separate creditor decree holder had applied for execution against his judgment-debtor who happens to be a partner of the firm there is nothing in S. 73 to prevent such separate creditor decree-holder from participating in the rateable distribution of those assets all though the same represent the sale proceeds of partnership property. In short, the argument is that O. 21, R. 49 takes away from the separate creditor decree-holder only the right of attachment and sale of partnership property and no more and should be strictly limited and should not be read into S. 73 so as to take away the fight of participating in rateable distribution and or that section.

22. This argument appears to me to overlook the words “same judgment-debtor” appearing in S. 73. These words indicate not only an identity of the individual but also an identity of the interest or character or capacity of the individual. The individual may be the same but if he has different interests or characters or capacities in different decrees, then the decree is not against “the same judgment-debtor.” To take a simple illustration, a decree against A and a decree against A as trustee or executor or heir are not decrees against “the same judgment-debtor.” Order 21, R. 49 makes a clear distinction between a decree passed against firm or against the partners in the firm as such and a decree passed against a partner but not as a partner in the firm as such. If I were to give full effect to O. 21, R. 49, am bound to construe those words in S. 73 in the light of the distinction made between the two kinds of decrees by O. 21, R. 49 and to hold that a decree passed against a firm or against the partners in the firm as such and a decree passed against a partner otherwise than as a partner in the firm as such are not decrees passed against “the same judgment-debtor” within the meaning of S. 73 of the Code. To hold otherwise will mean that although a separate creditor decree-holder cannot attach or sell partnership property, he can yet participate in the rateable distribution of such property which, to my mind, is an illogical position to Sake up.

23. If I once put this interpretation on the words “the same judgment-debtor” appearing in S. 73, in its application to O. 21, R. 49, have to do so in all cases. Thus, in the converse case, namely when a separate creditor decree-holder attaches and sells the separate property of his judgment-debtor who happens to be a partner in a firm and the sale proceeds are paid into Court and become assets held by the Court I shall have to hold that the partnership creditor decree, holder, even if he applied for execution of his decree against that firm or the partners in that firm as such before receipt of such assets will not be entitled to participate in the rateable distribution of those assets, because his application was not against “the same judgment-debtor” within the meaning of S. 73 of the Code.

24. This interpretation, therefore, has the merit not only of carrying the principles of Section 49 of the Partnership Act, and of O. 21, R. 49 to their full logical conclusion as regards the respective rights of the two sets of creditors over the partnership properties but also of giving at least partial effect in execution proceedings to the principles embodied in S. 49 as regards the respective rights of those two sets of creditors over the separate property of a judgment-debtor who happens to be a partner. If this interpretation is accepted, then when a partnership creditor decree-holder gets the assets representing partner, ship property into Court the separate creditor decree-holder against any of the partners who applied for execution before receipt of assets cannot claim rateable distribution of those assets and when a separate creditor decree-holder gets into Court the assets representing separate property of the judgment-debtor who happens to be a partner, the partnership creditor decree-holder who applied for execution before receipt of assets will not be entitled to claim rateable distribution of those assets. This result must logically follow in both cases. The only case in execution proceedings that will remain outside the operation of the principles enunciated in Section 49 of the Partnership Act, is one where the partnership creditor decree, holder under O. 21, R. 60 brings into Court assets representing the separate property of a partner the separate creditor decree-holder against that partner who applied for execution before receipt of those assets but not against the property represented by those assets will not be entitled to rateable distribution of those assets. This result must logically follow from O. 21, R. 50 and from the interpretation I put on the words “the same judgment-debtor” in S. 73 of the Code. This result is certainly undesirable from the point of view of separate creditors decree-holders but they must pay for want of diligence on their part, for, if they diligently and promptly execute their decrees against the separate property they can prevent this undesirable result. The inter, predation I put on those words in S. 73 completely protects the interests of the partnership creditor decree-holders over the partnership properties, also protects the interests of diligent separate creditor decree-holder over the separate property and is consonant with and gives full effect to the principles of O. 21, R. 49 of the Code and Section 49 of the Partnership Act, except as to separate creditor decree-holder who stands by and allows the separate property of his judgment-debtor to be brought into Court by the partnership creditor decree holder under O. 21, R. 60. If I do not put that interpretation on those words and treat S. 73 of the Code as a general provision I completely nullify the principles of O. 21, R. 49 of the Code and Section 49 of the Partnership Act, in their application to execution proceedings, for in that event the two sets of creditors will always participate in rateable distribution irrespective of whether the assets held by the Court represent partnership property or separate property of a partner. The only other way that I can think of is to construe Section 49 of the Partnership Act, as conferring or creating a general charge or lien on partnership property in favour of partnership creditors and on separate property in favour of the separate creditors and apply the principle of the section so construed in execution proceedings. The adoption of that method of interpretation will be to ignore the fact that S. 49 is in the Chapter dealing with dissolution of the firm and will make O. 21, R. 49 redundant and run counter to O. 21, R. 60 of the Code. On a consideration of the different sections and rules and of the balance of convenience I have come to the conclusion that I should construe S. 73 of the Code in the manner I have indicated above.

25. Before leaving the subject I should refer to a few reported decisions which seem to me to have some bearing on the question before me. In Radha Kanta Pal v. Pulin Krishna Pal, 42 C.W.N 310 : (A.I.R (26) 1938 Cal. 316), the appellants obtained a decree against a firm known as Ramkrishna Bejoy Krishna Pal on the Original Side of this Court on 27th November 1929. This decree was transferred to the Nadia Court and put into execution there against Pulin Behari Pal and Anil Krishna Pal and three other persons as partners of the firm. One Badha Gobinda Pal obtained a decree on 7th June 1933 in the Nadia Court against five persons individually two of whom, Pulin Behari Pal and Anil Krishna Pal, were partners of the firm of Ram Krishna Bejoy Krishna Pal. Radha Gobinda put his decree into execution. The appellants who had obtained a decree against the firm applied for rateable distribution of the money which would be brought to Court in execution of Radha Gobinda's decree. The learned Subordinate Judge rejected the application for rateable distribution on the following grounds:

“(1) that the execution of the decree obtained by the appellants was wholly bad in law, because no leave to execute the decree against 3 of the 6 persons alleged to be partners had been obtained;

(2) that the property which was sold was the persona property of Pulin alone; and

(3) that there was no satisfactory evidence to show that the property sold belonged to the firm against which the appellants obtained their decree.”

26. An Appellate Bench of this Court held that when a suit is brought under O. 30 of the CPC, against a firm, the suit is really against the persons who constitute the firm and the judgment is really & judgment against the individuals. In that suit of the appellants against the firm Pulin and Anil had been served as partners and in fact Pulin had appeared in that suit. Therefore the decree obtained by the appellants must be regarded as a decree against Pulin and Anil individually. The other three persons also alleged to be partner did not fall within cl. (b) or cl. (c) of O. 21 R. 60(1) and therefore the decree could not be executed against them. But the inclusion of the names of those three persons could not invalidate the execution itself. This disposes of the first ground I have mentioned and I have nothing to say against the reasoning adopted up to this point, After quoting the relevant portion of S. 73 of the Code, Nassim Ali, J. proceeded as follows:

“It has been already stated that the appellants applied for execution of their decree and made an application for rateable distribution before the receipt of the assets, Mr. Sen appearing on behalf of the opposite party, however, contended that the decree obtained by the appellants was against the firm Ram Krishna Bejoy Krishne Paul while the decree obtained by the opposite part was against Pulin Behari Paul and Anil Krishna Pau and three other persons individually. I am unable to accept this contention of Mr. Sen. It has been pointed out that the decree against the firm is in effect a decree against Pulin Behari Paul and Anil Krishna Paul individually. Consequently Pulin and Anil are the common judgment-debtors in the two decrees. This view is supported by a decision of the Bombay High Court in the case of the Administrator-General of Bombay v. Haji Sultanally Sushtary and Co., (A.I.R (14) 1927 Bom. 255). The appellants are therefore entitled to get rateable distribution of the sale proceeds in Execution Case No. 258 of 1933.”

27. The above observations only advert to the identity of the individual and not to the identity of interest or character or capacity of the judgment-debtor in construing the meaning of the words “the same judgment-debtor” in S. 73. The principles of Section 49 of the Partnership Act and O. 21, R. and the distinction made in the last mentioned rule in the two kinds of decrees which I have referred to above were not considered or discussed, With great respect to the learned Judges I are unable to accept the above observations as full or correct exposition of the law on the ??? under considerations. The grounds (2) and (3), raised by the learned Subordinate Judge ??? not dealt with at all. The next case is that of Sadhu Ram v. Chanpatrai Telu Ram, I.L.R (1937) 18 Lah 637 : A.I.R (24) 1937 Lah. 937. In this case the father of the appellant held 3 decrees against Moti Ram of which he sought execution. The respondent who had a decree against the firm of Moti Ram Harka Ram in which Moti Ram was a partner and not against Moti Ram in his individual capacity applied for rateable distribution. This was allowed. Appellant's father then filed a suit for refund. The suit was decreed by the trial Court and the lower appellate Court but dismissed by the High Court on second appeal. On a Letters Patent appeal therefrom Coldstream and Jai Lall, JJ., held that the respondent's application was not competent under S. 73 of the Coda as Moti Ram as a partner of the firm of Moti Ram Harka Ram was not “the same judgment-debtor” within the meaning of that section. In the course of his judgment Coldstream, J. at pp. 640 and 641 observed as follows:

“It is contended for the appellant that in the present case not only are the decrees not against the same judgment-debtor but rateable distribution is impossible in view of the provisions of Section 49 of the Partnership Act (which provision reproduces Section 262 of the Contract Act before it was amended) and that the judgment in Balmer Lawrie & Co. v. Jadunath Banerjee, (A.I.R (2) 1915 Cal. 658), is fully applicable because although the decree against the firm could be executed against Moti Ram, it could not be executed against his separate property until the debts of the firm had been paid, while Kishna'a decree would have to be satisfied out of Moti Ram's separate property first. The firm's property is not Moti Barn's property nor is Moti Ram's property the firm's and it is obvious that Moti Ram's property cannot be made a hotchpot out of which rateable distribution could be made to satisfy both the decrees.”

28. The case of Pannaji Devichand v. Lakkaji Dolaji, I.L.R (1943) Bom. 306 : (A.I.R (80) 1943 Bom. 156), is on the point now under consideration. The head note is as follows:

“Where a partner is served and appears in a suit against a firm to defend it, under the combined operation of O. 30, R. 6 and O. 21, R. 50 of the CPC, 1908, a decree passed in the sun could be executed against him personally and he would accordingly be the same judgment-debtor in that decree as also in another decree obtained against him personally. The judgment-creditors in the two decrees would, therefore, be entitled to claim rateable distribution under Section 73 of the CPC 1908.”

29. At p. 309 Divatia, J. dealt with the different rules of O. 30 to ascertain the nature of a decree against a firm and then referred to O. 21, R. 50 and came to the conclusion that by the continued operation of those roles the judgment-debtor in the two decrees was the same. He distinguished Balmer Lawrie & Co. v. Jadunath Banerjee, 42 Cal. 1 : (A.I.R (2) 1915 Cal. 658), as if the principle of the decision in that case was confined to a case where leave had not been obtained to execute the decree against an alleged partner under O. 21, R. 50(2). He dissented from Sadhu Ram v. Dhanpat Rai Telu Ram, I.L.R (1937) 18 Lah. 637 : (A.I.R (24) 1937 Lah. 937), on the ground (i) that Section 49 of the Partnership Act which is in the Chapter relating to the dissolution of a firm, applied only after dissolution of a firm and not when a decree was obtained against a going firm, (ii) that it applied to different debts—the debt of the firm and the separate debt of the partner—but that when decrees were passed, the debt merged in the decree and there came into being one kind of debt created by the decrees in both cases, and (iii) that there was nothing in O. 21, R. 50 to show that personal execution against the partner could not be taken unless the property of the partnership was exhausted. With great respect to the learned Judge he only took notice of the identity of the individual in construing the words “the Same judgment-debtor” in S. 73 of the Code. Indeed at p. 312 Divatia, J. observes: “The decisions in Balmer Lawrie & Co. v. Jadunath Banerjee (42 Cal. 1 : A.I.R (2) 1918 Cal. 658) and Sadhu Ram v. Dhanpat Rai Telu Ram, (I.L.R (1937) Lah. 637 : A.I.R (24) 1937 Lah. 937) seem to have been relied upon on behalf of the respondent, and they were cited with approval in support of the proposition that a decree against A in his personal capacity and another against him as heir of a deceased person were not against the same judgment-debtor. To my mind there is a clear distinction between a person in his capacity as the their of another person and a person who is a member of a firm and who is personally liable by virtue of the specific provisions of O. 21, R. 50. This point does not seem to have been brought to the notice of the Court, and the two judgments had been relied upon and cited with approval only for the general proposition that the judgment-debtor would not be the same where he filled two different capacities.” If the learned Judge only referred to O. 21, R. 49 he would have seen that a distinction had been made there between a decree against a firm or against the partners in the firm as such and a decree against a partner not as a partner in the firm as such. If His Lordship then went back to S. 73 he would have found that in the application of that section to the claim of a separate creditor decree-holder for rateable distribution in respect of partnership properties it had to be held that the two decrees were not against “the same judgment-debtor,” for to hold otherwise would be to allow rateable distribution of assets representing partnership property to a separate creditor decree-holder who could not under O. 21, R. 49 have attached or sold that property—an illogical and impossible position to take up. Once that meaning was given to those words in S. 73 read with O. 21. R. 49 there is no escape from giving the same meaning to those words in S. 73 read with O. 21, R. 50. The learned Judge overlooked the fact that although Section 49. Partnership Act does not, in terms, apply to execution proceedings, yet the salutary principles embodied therein are consonant with O. 21, Rr. 49 and 50 and should be given effect to as far as possible. This can be done to a great extent, if-not fully, by interpreting the words “the same judgment-debtor” in the way I have, for reasons stated by me, indicated above. With the utmost respect I register my disagreement with the decision of Divatia, J. in the last-mentioned case.

30. I refrain from dealing with the case of Hemendra Nath Roy v. East Bengal Commercial Bank Mymensingh, 63 Cal. 923 : (A.I.R (23) 1936 Cal. 210) which drew attention to the word “passed” in S. 73 and the alterations brought about thereby and the case of Jamiyatram Gouri Shanker v. Umiaya Shankar Pranshankar, I.L.R (1941) Bom. 544 : (A.I.R (28) 1941 Bom. 327) which dissented from Hemendra Nath Chaudhuri's case, (63 Cal. 923 : A.I.R (23) 1936 Cal. 210), for they do not appear to me to be quite in point. But the reasonings set forth by Sir John Beaumont, C.J, at p. 546 appear to me to be sound. Those reasonings become stronger if one refers to O. 21, R. 49. I may also mention that the word “passed” also occurs in O. 21, R. 49 and therefore the significance attached to that word in S. 73 does lose in force.

31. In my opinion, for reasons I have given above, the two decrees before me are not against “the same judgment-debtor” within the meaning of S. 73 of the Code. The result, therefore, is that if the fund in question which is admittedly the separate property of the defendant were paid into Court now to the credit of this suit the respondent, Mr. Sen's client, would not be entitled to claim rateable distribution thereof. In these circumstances, I do not see any necessity for directing payment of the funds into Court. I therefore accede to this application and make an order that the amount of Rs. 5202 be paid to the applicant's solicitor to be held by him without any claim for lien until the further order of this Court. There will be also an order in terms of cl. (b). This will be subject to payment by the applicant of the poundage and charges of the Sheriff and the Accountant-General's commission before receipt of the fund from the East Indian Railway. This order will, however, not be drawn up, until the usual certificates from the Sheriff and the Registrar are put in showing that there are no other subsisting attachment or application for execution by any other decree-holder. If there be any other subsisting attachment or application for execution, then the order will be that the General Manager of the East Indian Railway do pay the funds, Rs. 5202, attached in their hands and belonging to the defendant into Court to the credit of this suit and there will also be an order in terms of cl. (b) of the summons. Certified for counsel.

R.G.D

32. Application allowed.