Spencer, J.: — The question to be decided in this Second Appeal is whether money deposited in Court to the credit of a judgment-debtor before any decree-holder applies in execution to have it paid towards the satisfaction of his decree should be dealt with on a system of priority when several decree-holders afterwards come in and apply to have, it attached or whether it should be rateably distributed among them.

In this case the money was deposited on January 7th, 1909 by the judgment-debtor in Original Suit No. 207 of 1908 to the credit of his decree-holder, Muthiah Chetty, and was about to lapse to Government on 15th February 1916, when the appellants attached it on 23rd December, 1915 in execution of their decree in O. S. No. 87 of 1913. The respondent (another decree-holder) came in later on 25th February and obtained rateable distribution, notwithstanding the fact that the amount would have lapsed to Government by the date he filed his execution petition had it not been for the appellants' diligence. The present suit was brought to obtain a re-adjustment of the order for rateable distribution passed in execution.

On the point of law as stated above there is a considerable difference of opinion.

Sect. 73, Civil Procedure Code, does not in terms apply, because the money deposited is not strictly speaking “assets held” in the process of execution (vide Sorabji Coovarji v. Kala Raghunath, and because the persons desirous of having it paid towards their decrees did not apply for execution before the money was received. (Vide Tiruchittambala Chetti v. Seshayyangar.

O. 21, R. 52, Civil Procedure Code, has been held by Bakewell, J. in Katum Sahiba v. Hajee Badsha Sahib, to be the appropriate section of the Code for disposing of such a fund but in his opinion that section does not stand in the way of the Court making a rateable distribution disregarding the order in which attachments have been made, as attachment does not confer any right of priority. A similar view was taken by Sanderson, C. J. and Mookerjee, J. in Thakurdas Motilal v. Joseph Iskender on general principles of justice, equity and good conscience. On the other hand in the latest reported case of this Court in Umma Venkataratnam & Co. v. Adamji Usman & Co.(3), Oldfield and Seshagiri Aiyar, JJ. have laid down that in such cases the diligence of the first applicant should be rewarded by paying him in full before other decree holders are allowed to take a share; and this decision has been followed since in an unreported Case C. R. P. No. 1309 of 1917 by Bakewell, J.

Bakewell, J. in Katum Sahib v. Hajee Badsha Sahib followed the practice in administration suits which was fully discussed in Soobul Chunder Lal v. Russick Loll Mitter(4).

Seshagiri Aiyar, J. in his judgment in Venkatratnam & Co. v. Advaniji Usman & Co., purports to follow the judgment of Wallis, C. J., in K. Tiruvangadial v. K. Tiruvengadiah(5) but the head-note in that case does not properly represent what was decided.

Under these circumstances I think that an authoritative decision is needed for the guidance of Courts which are hesitating whether under the compulsion of Act XVIII of 1875 to follow the opinion of a single Judge reported in the authorised reports, or to follow the judgment of a Bench which has not been so reported, when the single judge who pronounced the former judgment has since subscribed to the decision of the Bench of two Judges who took a different view. I would therefore refer the question stated at the beginning of this reference to a Full Bench.

Sadasiva Aiyar, J.—I agree that the question raised is an important one and as the answer is not free from difficulty, it should be referred to a Full Bench.

In the old section, the words were “are realized by sale or otherwise” and “prior to the realization.” In the new section, the words are “are held” and “before the receipt of such assets.” I do not think the change of language is very material. The moneys which were held not liable to be distributed under old Sect. 295 because they were not realised by sale or otherwise but were voluntarily paid into Court seem also to be governed by Sect. 73 (See Vibudhapriya Tirthaswami v. Yusuf Sahib, for the old law) (moneys whether in the possession of the same Court or of another Court are attached by the procedure laid down in O. 21, R. 52).

Both the new Sect. (73) and the old Sect. (295) contemplated rateable distribution only among those decree-holders who have applied for execution before the receipt by the Court of the moneys sought to be operated upon. On that ground, Sect. 73 does not, in terms apply to the present case. I am not quite sure of the other ground mentioned in my learned brother's opinion for taking the case out of Sect. 73, namely, that the moneys were not “assets held” in the process of execution. I am inclined to think that they are so held. The case in Sorabji Coovarji v. Kola Raghunath referred to was a case in which the assets were deposited by the judgment-debtor for the particular purpose of satisfying two individual creditors and hence, it was decided that the assets were not held in the process of execution, that is, as assets to be disposed of by the Court in execution proceedings in accordance with the general provisions of the Civil Procedure Code relating to execution, including Sect. 73. In the present case, the assets remained in Court to the credit of the judgment-debtor and had not been earmarked by him to be paid to any of the competing decree-holders in particular and when attached, were (it seems to me) assets held in the process of execution.

In deciding the difficult point in dispute, some weight has to be given to the argument that the fact that the legislature specially provided for rateable distribution among those competing decree-holders who had put in execution petitions before receipt of assets is some indication that the legislature probably intended a different rule to be followed when the competition was between decree-holders who put in execution applications after the date of the receipt of assets.

[This Second Appeal came on for hearing before the Full Bench constituted as above].

Messrs. K. Rajah Aiyar and V. Ramaswami Aiyar for the Appellants.

Messrs. A. Krishnaswami Aiyar and M. Patanjali Sastri for the Respondent.

JUDGMENT

The Chief Justice. — The answer to the reference appears to depend on the construction of O. 21, R. 51 of the Code of Civil Procedure which was first enacted as Sect. 237 of the Code of 1859 under which the first attaching decree-holder was entitled, as the first judgment creditor suing out a writ of fi-fa in England, to have his claim satisfied in full out of the proceeds of execution, the surplus only being liable under the Code to rateable distribution among subsequent attaching creditors. It was however retained as Sect. 272 of the later codes under which by virtue of Sect. 295, now 73, the attaching judgment-creditors were obliged to submit to rateable distribution with, but only with other decree-holders who had applied to the attaching Court for execution before the date specified in the section. Now it does not seem likely that the legislature would have retained, and even extended, the old Sect. 217 by substituting the word “property” for “money or any security,” if it had considered that it would interfere with the due working of the procedure for rateable distribution introduced by Sect. 295, and would authorise the admission to rateable distribution of decree-holders who had not entitled themselves to rateable distribution under Sect. 295 by applying for execution to the Court in which the first attaching decree-holders' decree was being executed, but had themselves subsequently to the first attachment, attached the property in the Court which had the custody of it, hereinafter called the custody Court. The procedure for rateable distribution under Sect. 295, now 73, applies to attached property in the custody of a Court just as much as to any other kind of attached property, and in my opinion precludes any rateable distribution on equitable grounds, of property attached under R. 52 among any other class of decree-holders.

The section which is now R. 52 prescribes a form of attachment for property which is “in the custody of a Court or any public officer” and “under the attachment is to be held subject to the further orders” of the attaching Court. Where the property attached is in the custody of a public officer, it is clearly the duty of the attaching Court to provide, if necessary, for the realization of the property and to divide the proceeds of the realization rateably between the attaching decree-holder and the other decree-holders who have applied to it for execution before it received such proceeds in satisfaction of their decrees. If the attached property is money, it is now, in my opinion, the duty of the attaching Court, having regard to the provisions of Sect. 295, to call on the public officer pay it into Court and to deal with it in the same manner. When the property attached is in “the custody of a Court” it is equally to be held by the custody Court subject to the further orders of the attaching Court, and subject also to the proviso which has next to be examined which does not in my opinion either relieve the attaching Court of the duty of getting in and distributing the money or proceeds of realization if available and distributing them among the decree-holders entitled under Sect. 295, now 73, or authorise the custody Court to embark on another sort of rateable distribution among another class of decree-holders. The proviso only says that “any question of title or priority arising between the decree-holders” (meaning the decree-holder who had made the attachment) “and any other person not being the judgment-debtor claiming to be interested in such property by virtue of any assignment, attachment, or otherwise, shall be determined by such Court,” the custody Court. This will include claims questioning the title of the judgment-debtor and other cases, but taking the present case of the property in the custody Court being made the subject of several attachments in execution of several decrees, the custody Court is then in my opinion required by the proviso to determine which of these attachments is entitled to priority, and in the absence of any legislative provision (Sect. 63 which has given rise to difficulties which need not now be considered does not apply to the present case) to award such priority to the first attachment in date because that attachment became complete on the service of the notice on the custody Court and subsequent attachments cannot in the absence of express legislative provision affect the right of the first attaching creditor to have the attached property realized in execution of his decree and distributed rateably among the decree-holders entitled under Sect. 295, now 73, in statisfaction of their decrees. If the other decree-holders want to share in the rateable distribution, their proper course is to apply in time if they can, to the attaching or executing Court; and if instead of doing so, they choose to attach the property in the custody Court, the result will be that the attaching decree-holder who is second in point of time will be entitled to proceed in execution against any balance that may be left in the hands of the custody Court after the full satisfaction of the decree of the first attaching decree, holder and of the other decree-holders who have entitled themselves to rateable distribution under Sect. 295, now 73, in executing his decree. For these reasons, I am of opinion with great respect that the decisions in Katum Sahiba v. Hajee Badsha Sahib and in Thakurdas Motilal v. Joseph Iskendar allowing rateable distribution among decree-holders attaching the property in the custody Court should not be followed.

The same principles must be applied in the present case in which the attaching Court and the custody Court are the same. The fact that money was lying in Court to the credit of the judgment-debtor in a suit other than that in which the attachments were made does not make it assets “held by a Court” within the meaning of Sect. 73 which clearly refers to assets levied in execution or paid into Court in satisfaction of the decree under execution, and not to assets lying in the same Court to the credit of the judgment-debtor in another suit. Such assets may of course be attached by the Court in execution of another decree of the same Court. The Code does not say how such attachment is to be made. The order “attach” appears to be sufficient, though of course some record of the attachment must be placed among the records of the suits to the credit of which the money is lying. On the other hand the order of attachment does not of itself effect a transfer to the credit of the suit in which the attachment is made so as to constitute a receipt of assets within the meaning of Sect. 73. The money may not be available as being already subject to another attachment possibly in another Court, and it is only when the Court comes to the conclusion that there is no objection and orders the transfer of the money or so much as is necessary to satisfy the decree-holders who have applied to it for execution, to be transferred to the credit of the first attaching creditor's suit, which it is engaged in executing that there can be said to be a receipt of assets within the meaning of Sect. 73 and that a rateable distribution can be made. Judged by this test, the respondents in this appeal were entitled to rateable distribution, not on the grounds assigned in the lower Courts and referred to in the reference, but under Sect. 73, Civil Procedure Code, because they applied for execution of their decrees to the Court executing the first attaching creditor's decree before the receipt of assets by that Court. The appeal therefore fails and is dismissed with costs.

Ayling, J.—I agree.

Napier, J.—I agree.

Sadasiva Aiyar, J.—I agree with my Lord in his reasoning and in his conclusion. I shall however say a few words of my own principally on the question “what further receipt of assets” means. In our referring orders Spencer, J. and myself held that Sect. 73 of the Civil Procedure Code did not in terms apply to the present case. Spencer, J's reasons were two, namely, (1) because “the money deposited” was not “assets held” within the meaning of those words in that section and (2) because execution was not applied for “before the receipt of” such assets within the meaning of these words in that same section. My sole reason was the reason No. 2 of Mr. Justice Spencer, as I was doubtful about his reason No. 1. On the further consideration which I have been able to give to this case, I am satisfied that the second reason also is not valid as the words “before receipt of such assets” in Sect. 73 though much more clear than the words “prior to the realization” in the old Sect. 295 (realization having been a word of controverted meaning) must themselves be qualified by the understood words “levied in the course of execution and paid into Court in satisfaction of any of the decrees under execution or transferred for purposes of execution to the credit of one or more of the decrees under execution.”

In the present case, the assets seem not to have been “received” in this sense till long after the dates of the two attachment, in question and in fact, till the money was impliedly so transferred to the credit of one or both of the decrees just before the order was passed for rateable distribution. Hence Sect. 73 clearly applies.

As regards O. 21, R. 52, the proviso in the 2nd paragraph is an exception to the 1st paragraph and the words “question of priority by attachments” in the 2nd paragraph, in my opinion were intended to include questions of priority arising by reason of attachments made by several executing Courts, but not questions of priority arising out of attachments made by decree-holders executing through the same Courts where the latter Court is not the custody Court.

I think that portions of Rr. 179 and 180 of the Civil Rules of Practice which require that the Court should proceed in certain cases mentiond in R. 179, as if the decree-holder was an assignee of the judgment-debtor and require in certain cases mentioned in R. 180 that “the execution petition shall ask that the decree may be transmitted to the custody Court,” are ultra vires as being inconsistent with the rights and privileges given to decree-holders and their assignees in the old Civil Procedure Code and as not having been framed in the manner and by the authority prescribed by the new Code, for the making of valid new rules and for altering existing rules.

Rr. 179 and 180, of the Civil Rules of Practice are however very convenient rules and if followed would markedly diminish the number of conflicts among orders passed by different Courts as the directions in these Rules when followed have the effect of converting the custody Court into the executing Court. I would therefore suggest to the Rule Committee to take up this question and frame new rules on the lines of Rr. 179. and. 180 of the Civil Rules of Practice to avoid as far as possible nice; intricate and difficult questions as regards the conflict of jurisdiction and powers among Courts being litigated in execution proceedings.

Krishnan, J.—As I agree with the judgment of the learned Chief Justice who has dealt with the case very fully, I shall only briefly state my reasons.

It seems to me that O. 21, R. 52 Civil Procedure Code is the provision for the attachment of money or property in the custody of any Court, whether that Court be the same Court as the attaching Court, or a different Court. There is no limitation on the point in the wording of the rule and there is no other provision for attachment when the attaching Court and the “custody Court” are one and the same. When the two are the same, it seems to me that, as attaching Court, it will act in the suit in which the attachment order was made and as custody Court, in the suits in which the money or property attached was brought into Court. This is the only distinction that I can see when the Court acts.

As the custody Court, it will decide in the latter suit the questions arising under the proviso to R. 52, such as questions of title arising in claim petitions under R. 58 and if there are attachments by more Courts than one, on the property, questions as to which attachment has priority. After deciding these it will hold the property as the rule directs subject to the further orders of the Court whose attachment it has held to have priority, whether it is the same Court or another Court. The position in just the same whether the custody Court is the same Court as the attaching Court or a different Court.

The custody Court has, in my view nothing to do with the distribution of assets under the Code, as it has to hold the property subject to the further orders of the attaching Court; and Sect. 73 of the Civil Procedure Code has no application in the custody Court. If the property attached has to be sold to convert it into money, the attaching Court will take the necessary steps under the rules for sale in the Code, as in the case of any other property attached. But if it is money in the hands of the custody Court, the attaching Court may direct the money to be paid over to itself. It is only when the attaching Court gets the money into its hands, so as to be available for distribution that Sect. 73, Civil Procedure Code, comes into play; rateable distribution will then have to be given to all decree-holders who have brought themselves under the terms of the section by having applied for execution, prior to the receipt of such assets. When the attaching Court and the custody Court are the same, it seems to me that an order should be made by the Court as attaching Court for transferring the money from the suit in which it came into Court, to the suit in which the attachment took place. It is only when this is done, the Court as attaching Court can properly be said to have received the assets and to hold it, within the meaning of Sect. 73; and decree-holders who have attached prior to that are entitled to rateable distribution.

This view it seems to me, is in complete accord with the provisions of the Code and applies the statutory rule of rateable distribution to all cases including property in the custody of a Court. There is no necessity to treat the case of such property as different from the case of other properties, as regards rateable distribution and as an exception to the general rule and to rely on equitable principles, as was done in Thakurdas Motilal v. Joseph Iskender, and in Katum Sahib v. Hajee Badsha Sahib. In fact, when there is a statutory rule governing the case, there is no room in my view for the application of equitable principles and with all respect to the learned Judges in the Calcutta and Madras Cases, I agree that they should not be followed. The Code makes no difference between property in the custody of the attaching Court itself, property in the custody of other Courts or in the custody of Public Officers and property in the possession of other persons, as regards the method of distribution; the difference under the Code, is in the method of attachment and in the mode of decision as to its effect and validity. After the assets have been realised by the executing Court, Sect. 73 of the Civil Procedure Code applies to all of them equally. If the other decree holders cannot bring themselves within the section the decree-holder under whose attachment the assets were realised must be paid in full, for Sect. 73 is the only provision which enables other decree-holders to share with him. (See Umma Venkataratnam and Co. v. Adamji Usman and Co.

Applying this view to the present case, the Second Appeal before us fails and I agree to its being dismissed with costs.

K.V.SAppeal dismissed.