Costello, J.:— This matter has been referred to a Full Bench by Jack and Khundkar, JJ. on the short point whether a Court acting under the provisions of Section 73 of the CPC, 1908, is entitled to inquire as to the validity of a decree put forward as the basis for claiming a share in the distribution of the assets of the judgment-debtor. The question we have to answer is whether that Court can go behind the decree and investigate the question whether that decree has beer obtained by fraud or collusion. There are conflicting decisions upon this point there are decisions of this Court which have laid it down that it is competent for a Court acting under the provision of Section 73 of the CPC, to go behind the decree. There is a number of decisions of other High Courts in the contrary sense. In order satisfactorily to deter mine the question it is necessary in the first place to examine the actual provisions of Section 73 of the CPC, 1908. The section in sub-S. (1) provides that

“where assets are held by a Court, and more persons than one have, before the receipt of ???, made application to the Court for the execution of decree for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets after deducting the costs of realization, shall be rateably distributed among all such persons.”

2. Then follow certain provisions as to the method by which distribution is to be effected. It appears therefore that the conditions for rateable distribution are these: (1) the decree-holder claiming to share in the rateable distribution should have applied for execution of his decree to the Court by which the asset are held; (2) such application should be made prior to the receipt of the asset by the Court; (3) the assets of which is rateable distribution is claimed must be assets held by the Court; (4) the attaching creditor as well as the decree-holder claiming to participate in the asset should be holders of decrees for the payment of money; and (5) such decree should have been obtained against the same judgment-debtor. The primary condition to be fulfilled by a person claiming to participate the assets of the judgment-debtor, is that he must have a decree for the payment of money, which has been obtained by him against the same judgment-debtor There are no words of qualification is sub-S. (1) as to the nature or validity is law of the decree which is being put forward. It appears therefore that a that is required, in order that a decree holder shall establish his right to participate, is that he should bring forward decree which he has obtained against he same judgment-debtor. Thereupon; becomes the duty of the Court by which the assets are held, to allow that decree-holder to participate in the distribution equally with the decree-holder who obtained the decree against the judgment-debtor upon which the execution proceedings were instituted. It has been argued by Mr. Das that if that is he position, a door is opened to a vast mount of fraudulent claims being put orward based on decrees obtained against the judgment-debtor by his benamidars, or friends, or other persons who have been found willing to lend themselves to a device for defrauding he bona fide judgment-creditor. It was upon the footing of some such argument rather some such consideration, hat the decision in the case in 11 Cal 421, was given by Sir Richard garth who was then the Chief Justice this Court. That decision was given a 1884, at a time when the Code of civil Procedure, 1882 was in force, and he matter fell to be decided under S. 295 of that Code. We find in the judgment of Sir Richard Garth this massage:

“We think that the words ‘decree-holders’ or persons holding decrees for money against the same judgment-debtor in S. 295 must mean bona fide decree-holders against the judgment-debtor; and if in point of fact the decree which be present applicant holds is a, sham decree, we think that the Court has a right to inquire into as question, and to exclude him from the distribution of assets. If this were not so, it is obvious that the section would give rise to a great deal of fraud, because any man, who is in difficulties, and likely to have executions issued against him by bona fide creditors, might always have a number of sham decrees in readiness against himself, to defeat the claim of any bona fide creditor who might put in an execution.”

3. In my opinion with all possible resect to the learned Chief Justice, there was no justification at all for inserting the qualification “bona fide” in front of he word ‘decree’ or ‘decree-holder.’ It is to be observed, as Sir Richard Garth himself mentioned, that the Court had not the advantage of hearing both sides in that case; in other words the matter was not fully argued before Sir Richard parth and Beverly J. It would therefore perhaps not be wrong to come to the conclusion that the judgment was given without due consideration of the precise nature of the then existing section. Unfortunately the judgment of Sir Richard Garth in 11 Cal 42 has been taken as the foundation for a number of subsequent decisions in this Court all of them adopting, as far as one can see, the same point pi view as that which influenced Sir Richard Garth. The next case in chronological order is one of Bombay, 13 Bom 1542. That was a decision of Sir Charles Sargent, the Chief Justice and Nanabhai Haridas, J. The head note of the case runs thus:

“In distributing the proceeds of execution under Section 295 of the CPC. (Act 14 of 1882), the Court has power to inquire into the bonafides of the several decree-holders that apply for rateable distribution, if the same has been called in question, and to decide it in the same manner as all other questions that arise in execution. The party aggrieved by such a decision is entitled, under the last clause of the section, to bring a regular suit to compel the successful judgment creditor in execution to refund.”

4. Sir Charles Sargent in delivering judgment said:

“The question referred to us is not without difficulty, but we are disposed to adopt the ruling of the Calcutta High Court in In re Sunder Das.”

5. So even at that early stage doubt was cast upon the correctness of the decision of Sir Richard Garth, and in the year 1897 doubt was again expressed by Sir Francis Maclean when, sitting with Banerjee, J., he delivered judgment in 1 CWN 6333. Referring to the case 11 Cal 42 and to that of 13 Bom 154 Sir Francis said:

“We are invited to say that these cases are not law. If they be law, there is an end of the present situation. I must say for myself, that I entertain some doubt as to the soundness of these decisions.”

6. In the year 1901 the matter was raised at any rate indirectly in a case before the Judicial Committee of the Privy Council 23 All 3134 and the importance of that case is this: that the judgment of their Lordships of the Judicial Committee which was given by Lord Robertson makes it clear that when a Court concerns itself with the distribution of assets under the provisions of S. 295 (as the relevant section then was), the Judge is acting in an administrative rather than in a judicial capacity. Lord Robertson made it clear as appears from the observations at p. 323 of the report that an order for distribution was a step in an execution proceeding. On the previous page His Lordship is reputed in saying:

“The scheme of S. 295 is rather to enable the Judge as a matter of administration to distribute the price according to what seems at the time to be the rights of parties without this distribution importing a conclusive adjudication on those rights, which may be subsequently readjusted by a suit such as the present.”

7. If one takes the view that in distributing the assets under the provisions of S. 295 of the previous Code or rather S. 73 of the present Code, the Court is acting in an administrative capacity, it is very difficult to understand how it can be contended that there can be any proper machinery for holding any kind of inquiry into the bona fides of a decree which is put forward as the basis of claim.

8. Some 11 years after the decision of the Judicial Committee of the Privy Council to which I have just referred there came a case which is the first of the two cases which are responsible for the present proceedings before us. In the year 1912 the point which we are now considering, came before a Bench consisting of Mookerjee, J., (that is to say, Sir Asutosh Mookerjee) and Beachcroft J., in 16 IC 7955. By that time of course the present Code of Civil Procedure had been in operation for some years, and therefore the matter fell within the provisions of S. 73. The head note of the case says:

“under Section 73 of the CPC (1908), it is competent to the Court to investigate whether any of the decree-holders who claim rateable distribution is a benamidar for the judgment-debtor or not.”

9. Mookerjee, J., in course of his judgment considered the matter and effect of sub-S. (1), S. 73. He said:

“On behalf of the opposite party, it has been argued that it is incumbent on the Court to ensure that the process of the Court is not abused, and that the Court must for that purpose, ascertain whether the decree on the basis whereof rateable distribution is claimed is a real decree.”

10. It appears therefore that the same kind of argument was put forward before Mookerjee, J., and Beachcroft, J., as had been effective before Sir Richard Garth many years before, and we have had the same kind of argument put before us to-day. It is remarkable circumstance that Mookerjee, J., himself said:

“The question of the true construction of the section, that is S. 73, is not free from difficult but in view of the decision of this Court in ??? Cal 42 which was followed in 13 Bom 154 we must overrule the contention of the petitioner.”

11. The petitioner had contended that the executing Court had no right to enquiry into the validity of a decree. Mookerjee, J., really added little or nothing the decision or to the reasons for the decision given by Sir Richard Garth, except in so far as appears from the concluding passage of his judgment when he said:

“We must bear in mind however that since the date of the decision in 11 Cal 42 and ??? Bom 154 the Code of Civil Procedure has been revised and re-enacted; if the legislature has been of the opinion that the view taken by the Court and by the Bombay High Court was erroneous and did not represent the true intention of the framers of the Code, the language to the section might have been suitably altered but although we find that the provisions ??? S. 295 have been reproduced with variations ??? S. 73, the phraseology has not been so modified as to justify an inference that the decision in ??? Cal 42 is no longer good law. We therefor accept the view adopted by Sir Richard Garth and Sir Charles Sargent.”

12. With all possible respect to Mookejee, J., that seems to me an entirely fact lacious argument, because the provision of S. 295 of the Act of 1882 and those ??? S. 73 of the present Code are ??? different, from the provisions of S. 27 ??? of the Code of 1859. Under the latter section some sort of machinery was provided for the kind of inquiry which ??? now sought in the present proceeding. What is still more important is that under the provisions of S. 295 of the Code of 1859 there was no provision for the institution of the suit such as now contained in sub-S (2), S. 73. The sub-section provides that:

“Where all or any of the assets liable to berate ably distributed under this section are pay to a person not entitled to receive the same, an person so entitled may sue such person to compel him to refund the assets.”

13. That provision would seem to indicate that the intention of the legislature both under the Code of 1882 and under the present Code was to provided that when essential conditions for rateable distribution were fulfilled there should be rateable distribution, without any inquiry at that stage into the validity of any decree, and a right was give to any party aggrieved subsequently ??? ??? a regular suit in order to secure is full share of the assets. If any part ??? the assets was distributed to a person who was not lawfully entitled to participate then it was, under the previous code and is under the present Code, ??? to the judgment-creditor who is aggrieved by that distribution to bring ??? suit claiming a refund. It seems to be that Mookerjee, J., in 16 IC 795 ??? not give sufficient weight to the fact that there was the distribution to which ??? have just referred between the provisions of the Code in 1859 and those of the ??? subsequent Codes. 16 IC 795 was decided in the year 1912, and in the following year the matter again came before the same Bench in 22 IC 4076 and it is not surprising that Mookerjee and Beachcroft, JJ., then adhered to the opinion which they had expressed in he case which had been before them in he previous year, and so once more bey said that an execution Court has jurisdiction under S. 73 of the Code, to old a summary inquiry as to the fraudulent character of a decree obtained by one of the decree-holders claiming rateable distribution.

14. Now it is those two judgments of Mookerjee, J., which have given rise to will the difficulties in the present proceedings, because when the matter was before the execution Court the learned Munsif seems to have thought that hose two decisions of this High Court were not correct, and he took the view that an execution Court ought not to go into the question of the validity of a decree put before it for the purpose of claiming a share in the distribution of assets. The learned Munsif who had to real with the matter apparently took hat view, because he was aware of the act that other High Courts have consistently adopted a view directly contrary to the view expressed by this Court.

15. We find that only three or four years after the decision given by Mookerjee and Beachroft, JJ., the Madras High Court came to the conclusion that an inquiry under Section 73 of the CPC is of a non-judicial character and a Court charged with the distribution of assets under that section has no power to injuire into the validity or the bona fides of a decree on the strength of which rateable distribution is claimed, and that the only conditions to be satisfied under S. 73 are that there must have been an application before the assets are realized, and that the decree should not have been satisfied. That was a decision of Ayling and Seshagiri Ayyar, JJ., in 1918 Mad. 8257. In the judgment delivered by Seshagiri Ayyar, J., we find a very illuminating passage at p. 843 (of 40 Mad.) The learned Judge referring to the case of 23 All. 313, that is to say, the case decided by the Judicial Committee of the Privy Council says:

“The question before their Lordships related to limitation. It was argued that a suit brought to contest the validity of payments made to one of the decree-holders should have been instituted within a year of the decision under Article 13, Limitation Act. Their Lordships pointed out that in making a rateable distribution under Section 295 of the CPC 1882, the officer was acting departmentally and not as a Court, and that consequently the decision of such an officer was not one which should have been set aside within a year. A comparison of the provisions of the Code of Civil Procedure relating to rateable distribution and to claim proceedings, fully bears out this view. O. 21, which relates to execution, makes provisions in Rr. 68 to 63 for investigating the claims of third parties. There are similar provisions beginning with R. 97 where there is resistance to delivery of possession to the decree-holder. An inquiry is provided for in these rules, and the unsuccessful party is directed to establish his right in a Court of law, failing which it is declared that the orders passed under the rules shall be final.”

16. Then in the final part of the judgment their Lordships said:

“No such provision is to be found with reference to S. 73. Cl. (2) of that section says that a wrongful distribution may be questioned in a regular suit. No procedure is prescribed for ascertaining the legality or otherwise of the decree under which rateable distribution is sought. The absence of such a provision indicates that the inquiry under S. 73 is non-judicial. It follows from this that an officer distributing the assets can have no power to inquire into the bona fides or otherwise of a decree brought to his notice. S. 73(c), Cl. (4), does not contemplate any such inquiry.”

17. Then the learned Judge emphasized again what are the fundamental conditions for obtaining a share in the distribution. He said:

“The only conditions to be satisfied are: there must have been an application before the assets are realized and the decree should not have been satisfied. Both these are matters of record which do not necessitate any lengthy investigation. We are therefore, on the construction of the provisions relating to the rateable distribution, of opinion that it is not competent to the District Munsif to inquire into the validity of a decree on the strength of which rateable distribution is claimed.”

18. Then he proceeds to examine the earlier decisions which I have mentioned, and to show why he differs from them. That was a decision of the Madras High Court. There is also a very important and significant decision given by a Full Bench of the Bombay High Court in 1922 Bom 318. The decision of the Court was given by Sir Norman Macleod, the then Chief Justice, and at p. 639 we find a passage where the learned Chief Justice after saying that the attention of the Court was drawn to S. 272 in the Code of 1859, proceeded thus:

“Therefore under that Code the Court which was distributing the assets amongst the decree-holders had the power to deal with the question whether any of the decrees passed by itself had been obtained by fraud or other improper means. But this power was not given by S. 295, Act 14 of 1882, nor by S. 73 of the present Code. S. 73 directs that the assets, after deducting the costs of realization, shall be rateably distributed among all such persons as shall have made applications to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor. On general principles, the Court, which would be merely a distributing agency would not have any power to deal with the question whether any of the decrees had been obtained by fraud or other improper means just as in an ordinary case of execution the Court which executes the decree cannot go behind the decree.”

19. With great respect I adopt and entirely agree with what is said in that passage of the judgment of Sir Norman Macleod. In my opinion it concisely and correctly gives the proper view of the point which is now under consideration. The passage indicates that the true view of the law is that the execution Court is only concerned with those matters which I have set out as being the conditions for participation, and so long as a decree is put forward by the holder of that decree, and the holder of the decree satisfies the Court that the money due under that decree has not been paid, then that decree-holder is entitled to come in and claim a proportionate share in the assets of the judgment-debtor. If any part of those assets is paid out to a decree-holder who has obtained a decree by fraud or collusion or by any other improper mean then a remedy is open to the judgment creditor who has suffered from those circumstances, as provided for in sub-S. (2), S. 73 of the Act of 1908. To my mind the dominating factor with regard to this point is this: that the Court concerned with the distribution of the assets is doing something in connexion with execution proceedings. The distribution of assets is only one of the acts in the execution proceedings, and the Court is functioning in an administrative and not in a judicial capacity and no procedure is provided under to provisions of S. 73 of the Act of 1908 and no machinery exists for the holding of an enquiry of the kind involved in the ascertainment as to whether or no the decree is not a bonafide or proper decree.

20. It would not only be inconvenient but indeed impossible for a Court concerning itself with execution matters to decide in a summary procedure, whether or not a decree is a ‘bona fide,’ to us the expression of Mookerjee, J:, or “real” decree as said by the other learned Judge in the same case. The last case to which I would refer in order to complete the chronological survey of the authorities is 1926 Pat. 4979, in which Das and Foster, JJ., relying on 23 All. 313, decided in definite term that:

“an executing Court making a rateable distribution under Section 73 of the CPC, 1908, has power to make enquiries into the bona fides of the decrees of the rival claimants.”

21. In my judgment the decisions in the Madras, Bombay and Patna High Court; represent the correct view of the law. It follows therefore that we must say that the cases of 16 I.C 795 and 22 I.C 407 were not correctly decided. We are unanimously of opinion that the Rule No. 1606 of 1933 which was issued on 15th December 1933 must be discharged. Each party will beat its own costs in the Rule as well as in this reference.

Lort-Williams, J.:— S. 272, Act 8 of 1859 provided that:

“if it shall appear to the Court, upon the application of a decree-holder, that any other decree under which property has been attached was obtained by fraud or other improper means the Court may order that the applicant shall be satisfied out of the proceeds of the property attached so far as the same may suffice for the purpose if such other decree be a decree of that Court, or, if it be a decree of another Court, may stay the proceedings to enable the applicant to obtain a similar order from the Court by which the decree was made.”

22. There was no such provision in S. 295, Act 14 of 1882, nor is there any in Section 73 of the present CPC. But S. 295 provided that

“If all or any of such essets be paid to a person not entitled to receive the same, any person so entitled may sue such person, to compel him to refund the assets,”

and similar provision is made in S. 73(2). Nevertheless, in 11 Cal. 42, Sir Richard Garth, C.J, decided that

“a Court is bound, in cases falling within this section, to satisfy itself whether the claimants are bona fide decree-holders within the meaning of the section, and where it is unable to satisfy itself as to the bona fides of the claim, the Court should exclude such claimant from the distribution of assets.”

23. This is the source and foundation of other decisions in the Calcutta High Court, especially in 16 IC 795 and 22 IC 407 and has given rise to the conflict between this and other High Courts on this point. Sir Richard Garth, at p. 44 of the report in the case of In re Sunder Das said as follows:

“He contends that, so long as his client holds a decree against the judgment-debtor which is unsatisfied (let that decree be ever so fraudulent) still the Court is bound to give effect to it, and to allow the decree-holder to share in the assets. We cannot adopt that view. We think that the words “decree-holders” or persons holding decrees for money against the same judgment-debtor in S. 295 must mean bona fide decree-holders against the judgment-debtor; and if in point of fact the decree which the present applicant holds is a sham decree, we think that the Court has a right to enquire into the question, and to exclude him from the distribution of assets.”

24. I do not understand the expression a “sham decree.” Clearly, the learned chief Justice did not mean a decree made by a sham Judge or the decree of a sham Court. What he meant was a decree made in respect of a false or fraudulent claim. But that would not make the decree a sham decree. Such a decree would be a good decree and valid, unless and until it was set aside by some competent Court, and as a result of a proper trial. A decree of a competent Court ought not to be set reside as a result merely of some kind of enquiry especially when charges of fraud are involved. S. 73(2) provides the appropriate remedy in such circumstances. Sir Richard Garth, and other Judges, and Mr. Narendra Kumar Dass, who has ably argued this case, have shown that the remedy given may often turn out to be of little or no value. But that is a result, and probably an inevitable result, of any attempt to make provision for rateable distribution in execution proceedings. Under Ss. 270 and 271 of the Code of 1859, the creditor who first attached the property had statutory priority, and; in my opinion; that provision was preferable to the provision for rateable distribution made for the first time in the Code of 1877 and included in the present Code. The function of the Judge under S. 73 is administrative and not judicial. This was decided, with respect to the corresponding S. 295, by their Lordships of the Judicial Committee of the Privy Council in 23 All. 313, in which Lord Robertson said at p. 322 of the report.

“The scheme of S. 295 is rather to enable the Judge as matter of administration to distribute the price according to what seem at the time to be the rights of parties without this distribution importing a conclusive adjudication on those rights, which may he subsequently readjusted by a suit such as the present.”

25. Therefore, in my opinion, the decisions in 1918 Mad. 825 and 1922 Bom. 31, are correct, and a Court charged with distribution of assets under Section 73 of the CPC, has no power to enquire into the validity or the bona fides of a decree on the strength of which rateable distribution is claimed. It follows that in my opinion, the cases of 16 IC 795 and 22 IC 407, on this point, were wrongly decided, as also was the case of 11 Cal. 42.

Jack, J.:— I would only add that Section 44 of the Evidence Act, to which a reference has been made in supporting the rule obviously no application to proceedings under Section 73 of the CPC. These proceedings are, as held by their Lordships of the Privy Council in 23 All. 313, a step in aid of execution. It is only decrees under Sections 40, 41 and 42 of the Evidence Act which are referred to in Section 44 of the Evidence Act and such decrees have no application in execution proceedings. It is well recognised that the executing Court is not entitled to question the validity of the decree.

26. The strongest argument which has been advanced in support of the Rule is that it is the duty of the Court to go into the question of fraud or collusion in order to prevent abuse of the process of the Court, but, if that were the case, it must be held that in all execution proceedings the Court would be equally entitled to inquire into such questions. That is obviously not so. The remedy which is open to the parties is laid down by the section itself, and the fact that no procedure is provided in the section for such an inquiry shows that it was never intended that such questions should be inquired into. So long as there is an unsatisfied decree capable of execution and application for rateable distribution has duly been made, the applicant is entitled to a share under Section 73 of the CPC.

M.C Ghose, J.:— Upon a full consideration of the matter, I am of opinion that the Court making a rateable distribution under Section 73 of the CPC, is not competent to decide whether a decree is bona fide. To hold otherwise would be to introduce complications in the administration of law. A decree may be challenged by an appeal and a second appeal. To allow an executing Court to set aside a decree on the ground of fraud or collusion would be to establish that Court as a revising Court of decrees and to delay the finality of litigation. The Court making a rateable distribution is not acting in its judicial capacity. The executing Court cannot go behind the decree. It is complained that the petitioner may be defrauded by false decrees obtained by dishonest people. The answer is that S. 73(2) provides the remedy. Whenever the petitioner finds that a fraudulent decree is put forward for the purpose of rateable distribution, it is open to him to challenge the decree by instituting a suit in the proper Court for a declaration and he may obtain an injunction from the Court, staying the distribution until the matter is decided.

Nasim Ali, J.:— I agree. I would like to add a few words with reference to the two cases on which the learned Advocate for the petitioners placed much reliance. In 11 Cal 42 the main reason given by the learned Chief Justice is that if before the distribution of assets no inquiry in the bonafide of the decree be held, the money may be paid to a Creditor who may be a pauper from whom it would be very difficult to realize the money afterwards. But if a certain creditor finds that a person is about to participate in the sale proceeds, on the basis of a fraudulent decree, his proper remedy is to institute at once a suit and to get an injunction from the Court restraining him from taking any money from the Court till the disposal of the suit. In 16 IC 795, Mookerjee, J., followed the decision in 11 Cal 42. But it appears from the judgment that the learned Judge also gave an additional reason in support of the view which was taken by the Chief Justice in the case reported in 11 Cal 42 viz.:

“Since the date of the decisions in 11 Cal 42 and 13 Bom 164 the Code of Civil Procedure has been revised and re-enacted; if the Legislature had been of the opinion that the view taken by this Court and by the Bombay High Court was erroneous and did not represent the true intention of the framers of the Code, the language of the section, might have been suitably altered; but although we find that the provisions of S. 295 have been reproduced with variations in S. 7, the phraseology has not been so modified as to justify an inference that the decision in 11 Cal 42 is no longer good law.”

27. But it would appear that in the year 1901 the Judicial Committee in 23 All 313 definitely pointed out that the act of the Court under S. 295 of the Code of 1882 was a ministerial Act. Therefore when the Legislature amended the section in the Code in 1908, no change was considered to be necessary. The Legislature in 1908 accepted the view that the distribution of assets by the Court under Section 73 of the Ministerial Act, and in case of dispute the rights off the parties can be subsequently adjudicated by a regular suit.

K.S

28. Reference answered.