The petitioners are the decree-holders in Small Cause Suits Nos. 747 of 1928 and 1021 of 1927, Sub-Court, Tuticorin, who obtained decrees in those suits against the same judgment-debtor. The respondent obtained a preliminary decree in O. S. No. 8 of 1921, Sub-Court, Mayavaram, for possession and mesne profits against the same judgment debtor under O. 20, R. 12, Civil Procedure Code, declaring her right to the properties and ordering an enquiry into mesne profits. In execution of his decree in S. C. S. No. 1021 of 1927, money in the hands of the garnishee was attached and deposited in Court to the credit of the decree-holder in S.C.S No. 1021 of 1927 on 2nd December 1929. In E. P. R. No. 19 of 1925 the respondent had applied for the attachment of the very amount under O. 21, R. 42, Civil Procedure Code, and the attachment had been ordered on 18th March 1925. On 14th December 1929 she filed M.A No. 435 of 1929 for the ascertainment of mesne profits. On 25th January 1930 she filed the application out of which this appeal arises, M.A No. 48 1930, for rateable distribution, under Ss. 73 and 151 Civil Procedure Code, of the amount attached in respect of future profits which have to be ascertained hereafter and for which she had already filed M.A No. 435 of 1929.
The appellants who had also applied for rateable distribution opposed the respondent's application on the ground that S. 73, Civil Procedure Code, is inapplicable inasmuch as she had not made her application to the Court before the receipt of assets and there was no application from her “for the execution of decree for the payment of money” as required under the section. The latter objection is based on the ground that an enquiry into mesne profits being a proceeding in the suit itself under O. 20, R. 12, even though under O. 21, R. 42 a decree-holder for mesne profits may obtain an attachment before the amount is ascertained, still to enable him to claim the benefit under S. 73 he must have filed a petition for execution after the amount is ascertained. These objections were overruled by the lower Court and rateable distribution was ordered in favour of the respondent.
The above objections have again been pressed before us. It is clear that if E.P.R No. 19 of 1925, the application for attachment under O. 21, R. 42, can be considered to be an application for execution, then both the objections of the appellants are answered. O. 21, R. 42 says that
“Where a decree directs an enquiry as to mesne profits……the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.”
The attachment in the present case was obtained by the respondent under this rule. In Viraraghava v. Varada it was held under the old Code that the holder of a decree for unascertained mesne profits who has applied to the Court to ascertain the amount thereof and to attach immovable property under S. 255 (corresponding to O. 21, R. 42 of the present Code) comes within the purview of S. 295 (corresponding to the present S. 73 Civil Procedure Code), and is entitled to share rateably with the attaching creditor in the assets realised. In the course of the judgment the learned Judges pointed out that “the decree held by the petitioner for mesne profits was a decree for money. Although the amount was still uncertain, the petitioner had applied to the Court to execute that decree.” It is argued for the appellants that as under the old Code the ascertainment of mesne profits was a proceeding in execution, the application in that behalf was sufficient to satisfy the requirements of S. 73; while under the present Code the ascertainment of mesne profits is a proceeding in the suit itself, (O. 20, R. 12, Civil Procedure Code) and therefore, unless a petition for execution after the amount of mesne profits has been ascertained is filed, the respondent cannot apply under S. 73. For the purpose of S. 73 the difference in procedure between the two Codes with regard to the ascertainment of mesne profits does not necessarily lead to the conclusion that without an application for execution after the ascertainment of profits rateable distribution cannot be claimed by the respondent. The Code allows under O. 21, R. 42 an attachment to be made to realise the amount to be ascertained in future “as in the case of an ordinary decree for the payment of money.” This provision, in our opinion, treats the attachment as a proceeding in execution of the decree and the application for attachment may well therefore be treated as one for execution. It is not unreasonable therefore to hold that as soon as the amount is ascertained the application made for obtaining the attachment becomes one for the execution of the decree for the realisation of the ascertained money. In this connection it may be observed that R. 42 finds a place under O. 21, the Order relating to the execution of decrees. If the view expressed above is not accepted, it would mean that under the old Code the decree-holder would under circumstances similar to those appearing in the present case be entitled to obtain rateable distribution, while he cannot do so under the present Code. In our opinion there is no justification for such a conclusion. In Mulla's Commentaries on the Code of Civil Procedure, under S. 73 the following statement of law appears: “A decree for the payment of mesne profits is a ‘decree for the payment of money’ within the meaning of this section, notwithstanding that the amount of mesne profits has not yet been ascertained. The holder of such a decree, who has applied for attachment under O. 21, R. 42 (Code of 1882, S. 255) is entitled to a rateable distribution with other decree-holders under this section;” and the authority referred to for this proposition is 5 Mad. 123,—the decision under the old Code we have already quoted. For the above reasons we hold that under the present Code the respondent can claim rateable distribution under S. 73 Civil Procedure Code.
It cannot be doubted that, in equity the distribution of the assets in this case should abide the passing of the final decree. The respondent was the first to attach the amount in question and the delay in passing the final decree should not in our opinion be allowed to stand in the way of her obtaining rateable distribution. She has made the application under S. 151, Civil Procedure Code also. We think this is pre-eminently a case for the application of that section. In our opinion, both under S. 73 and under S. 151 of the Civil Procedure Code the respondent's claim for rateable distribution should be recognised. We confirm the lower Court's order and dismiss this Civil Revision Petition with costs.
N. R. R.Petition dismissed.