1. The plaintiff's suit is for the recovery of a sum of money said to have been paid by the District Munsif's Court to the defendant who was not entitled to receive the same. The defendant got a decree in O.S. No. 99 of 22 against certain persons in July or August 1922. Before the decree he had attached certain moveables belonging to the defendants and proceeds of their sale were paid into Court. He applied for a cheque for the amounts due to him on 11th September 1922. The plaintiff who had filed O.S. 103 of 22 against the same defendants obtained a decree on 21st June 1922 and applied for attachment of the amount in Court on 80th June 1922 and the attachment was effected on 11th August 1922. Both the lower Courts have held that the plaintiff failed to file a proper execution application before 11th September 1922 and therefore he did not coma within the provisions of Section 73, Civil P.C., so as to be entitled to rateable distribution of the assets in Court. The plaintiff has preferred this second appeal.
2. The only point for consideration is whether Ex C is an execution application within the meaning of Section 73, Civil P.C., Ex- C is headed:
petition filed by the plaintiff under Order 21 Rule 11, Civil P C., and the prayer is that the amount belonging to the defendants and now in deposit in this Court in O.S. 99 of 22 may be attached immediately on condition of producing the decree copy later on.
3. The Subordinate Judge who is inclined to hold that this is an execution application is of opinion that he should have filed another application for a transfer of the money standing to the credit of suit No. 99 of 22 to the credit of his own suit No. 103 of 22. If Ex. C is an execution application, no second application would be necessary in order to enable the plaintiff to get the benefit of Section 73. The contention for the respondent is that this is only an interlocutory application, and therefore, it cannot be treated as an execution application. In considering whether the application is an execution application or not we have to look at the sub stance and the form of the application. No doubt, Ex. C is not in the form prescribed by the Civil Rules of Practice, but it is filed under Order 21, Rule 11 which lays down what particulars should an execution application contain. Ex. C complies with the main particulars required by Rule 11, the names of the parties, the order under which it is filed and the relief claimed* The condition mentioned in Ex. C of producing the copy of the decree shows that it was in pursuance of the decree that the relief mentioned in it was claimed. The Court acted upon it and ordered an attachment of the fund in Court and the attachment was made on 11th May 1922. In these circumstances can it be said that Ex. C is not an execution application? It was the duty of the Court to have returned the application when it was not in proper form but when the Court overlooked the want of form or the absence of certain particulars required under the rules and passed an order granting the relief prayed for it would be pedantry to say that the petition on which the relief claimed was granted was not a proper petition. Forms and rules are prescribed for the guidance of the Courts and the litigants, Where a Court overlooks certain small informalities and grants the relief asked for it is not open to the party against whom the relief is granted to question the correctness or the legality of the Court's order on the ground that the application on which the relief is granted is not in the proper form. Where one relief is claimed and another is granted the Court may be said to act illegally or with material irregularity, but when a certain prayer is specifically made under a rule which permits the making of that prayer and when the Court grants the prayer overlooking the informality if any, the order of the Court is legal. I, therefore, hold that Ex. C is an execution application.
4. If Ex. C is an execution application, it is unnecessary that there should be a further application in order to enable the plaintiff to come within Section 73. All that Section 73 requires in order to enable a person to get rateable distribution is that he should make an application for the execution of the decree before the receipt of the assets by the Court. In this case it is admitted that the assets were not received before 11th September 1922 and the application made on 20th June 1922 was before the assets were received. A number of cases are relied upon by the respondent for the position that Ex. C is not an execution application but none of the cases touch the point at issue. In Arunachalam Chettiar v. Hajee Sheik Meera Rowther [19l0] 34 Mad. 25, it was held that an attachment before judgment was in no sense an application for execution. In Nachiappa Chettiar v. Subbier A.I.R. 1923 Mad. 505, it was held that the amount deposited in Court became "assets hold in Court" within the terms of Section 73, Civil P.C., only when the Court passed an order on an application for payment in execution of the decree.
5. In Vishnu v. Rampratab A.I.R. 1921 Bom. 219, the petitioner applied for attachment before judgment. The property attached was sold and the sale proceeds were paid into Court to the credit of the suit. Another person who had previously got a decree against the same defendant applied for execution and asked that the proceeds which were lying in Court to the credit of the petitioner's suit must be attached. His application was heard and the money in Court was paid to him without any notice to the petitioner. The petitioner could not then apply for execution as he had not obtained a copy of the decree in his suit. He brought a suit against the person who got the sale proceeds from Court and it was dismissed by the lower Courts He made an application to the High Court under Section 115 and the High Court held that there was no material irregularity in not giving the petitioner notice of the application of his opponent before paying the proceeds out of Court. This decision is in conformity with Arunachalam Chettiar v. Hajee Shikh Meera Rowther [1910] 34 Mad. 25. If the plaintiff relied only on his application for attachment before judgment as entitling him to rateable distribution under Section 73 he would, no doubt, be out of the Court but here he made an application for execution by way of attachment after he obtained a decree in his favour.
6. The decision in Viswanathan Chetti v. Arunachalam Chetti A.I.R. 1921 Mad. 218, has no application to the present case If the plaintiff had applied for the transfer of the assets standing to the credit of O.S. 99 of 1922 to the credit of his own suit he would be entitled to the whole of the amount, for the defendant did not obtain a decree till August 1922. Now he claims only rateable distribution under Section 73 and, therefore, his not applying to have the amount standing to the credit of O.S. 99 of 1922 transferred to the credit of his own suit does not stand in the way of his obtaining relief under Section 73. The decision in Kasiwar De v. Aswini Kumar Pal A.I.R. 1926 Cal. 249, is strongly relied upon in support of the position that another application was necessary in order to enable the plaintiff to come within Section 73. In that case an application was made for the issue of a precept to another Court for attachment of certain property. No further application was made for execution. A Bench of the Calcutta High Court held that a mere application for the issue of a precept to another Court was not an execution application so as to entitle the applicant to the benefit of Section 73. Section 46, Civil P.C., requires that an application should be made to the Court to which the precept is issued for the sale of the property attached. If this application is not made within two months or within such period as is extended by the order of the Court which passed the decree the attachment by the Court to which the precept is issued will cease to continue. That decision has no application to the present case, for here the custody Court was the executing Court and the attachment was made by the Court which passed the decree.
7. Though the plaintiff claims in the suit the whole of the amount which was paid to the defendant he is only entitled under Section 73, Civil P.C., to a rateable distribution. The appeal is allowed, the decrees of the lower Courts are set aside and the District Munsif will pass a decree in conformity with the provisions of section 73. Both the parties will pay and receive proportionate costs throughout.
Jackson J.
8. The point for determination is whether the plaintiff can be said to have made an application to the Court for the execution of his decree by filing the petition Ex. C. This document runs:
9. Although Order 21, Rule 11, is cited at the head, few of the requirements of that rule are fulfilled. The petition contains neither verification, the date of the decree nor the particulars required by Sub-clauses (d), (e) (f) (g) and (h) of the rule. I cannot regard these defects as immaterial. It is not as though the party had made some accidental omission which is now sought to be turned to account as invalidating the application. From the outset it must have been clear to the party and Court alike that in form and substance this was not an application under Order 21, Rule 11, and as a matter of fact, the Court treated it as an interlocutory application and not as an execution petition. If it treated it as the latter, the Court under Rule 17 had the alternatives of rejecting the application or returning it for amendment. It could not adopt a third course and order attachment as if it was seised of a proper application or though not seised, by its inherent power.
10. There can be no question of inherent or of dispensing power in this matter. Execution is an invasion of private right and can only be done under and in compliance with the Code.
Section 235 (O. 21, Rule 11) specifies the form and contents of the application. The mere application for rateable distribution, therefore, which does not comply with the requirements of the section in form or substance cannot be treated as the sort of application for execution falling within the scope of Section 295 (S. 73): Arunachalam Chettiar v. Hajee Sheikh Meera Rowther [19l0] 34 Mad. 25.
11. In other words the Court having regard to the known circumstances of the case cannot take up a mere application for rateable distribution and fill in the particulars necessary in order to make it a, regular application for execution. Nor can it do so with a mere application for attachment.
12. In Vishnu v. Ram Paratab A.I.R. 1921 Bom. 219, the Court was confessedly confronted with a very hard case, but there was no question of straining the Code on behalf of the party who had failed to comply with its-provisions;
he did not apply for the execution of the decree so as to make his position secure.
13. The general equity in these cases appears to follow the common maxim, first come first served." The person who is sufficiently alive to his interests to attach the property of his debtor is left undisturbed, and others who are behind' him in the chase can only claim rateable distribution if they create such circumstances under Section 73 as entitle their claim to be regarded as simultaneous. In the absence of these circumstances, they have no right, and the Court has no concern to deprive the other creditor of his legitimate gains. Therefore I see no reason to differ from the Courts below and should: dismiss the appeal with costs.
14. As there is a difference of opinion the appeal will stand dismissed with costs.