1. This petition has been filed in revision against the order passed on 22nd February 1930 in execution proceedings arising out of Civil Suit No. 224 of 1928. The applicant Harnarayan obtained a decree in Civil Suit No. 1232 in the Court of the Additional Subordinate Judge, Second Class, Khamgaon. The non-applicant Sahebchand obtained a decree in Civil Suit No. 224 of 1928. Both the decree-holders who had a common judgment-debtor proceeded against the same property in execution. The proceedings in Civil Suit No. 1232 of 1928 were stayed on 8th August 1930 as the proceedings were in progress in the Court of the Second Class Subordinate Judge, Khamgaon. The execution case arising out of Civil Suit No. 1232 of 1928 was ordered to be transferred to the Court of the Subordinate Judge, Second Class, Khamgaon. The applicant applied to the Court of Subordinate Judge, Second Class, Khamgon, which held the assets, for rateable distribution. That application was dismissed on the ground that the applicant had not applied for execution of his decree as required by Section 73 of the CPC. The learned Subordinate Judge purported to follow the law laid down in Balaji v. Gopal A.I.R 1929 Nag. 148 , 116 I.C 655 , 25 N.L.R 94. In applying this law the learned Subordinate Judge failed to notice that in the case reported in Balaji v. Gopal A.I.R 1929 Nag. 148 , 116 I.C 655 , 25 N.L.R 94 the execution proceedings were pending in the same Court and not two different Courts as in the present case. The Court of the Second Class Subordinate gudge, Khamgaon, is of higher grade than the Court of the Additional Subordinate Judge 2nd class, Khamgaon. The grade of the Court depends upon the pecuniary or other limitations of the jurisdiction of the particular Court: see Turmuklal Harkisanrai v. Kalyandas Khushal [1895] 19 Bom. 127. When the assets are held by a Court of higher grade that Court alone can determine any claim to the property attached. It is not necessary that a formal application for execution has to be made to the Court for rateable distribution in cases to which Section 63 of the CPC, applies. It is only when the holders of the decree have no right or claim under S. 63, and their only remedy is under S. 73, that they must comply with the provisions of S. 73 and apply for execution. The point is treated at great length in Girindra Nath Ray v. Kedar Nath Bidyanta A.I.R 1925 Cal. 966 , 87 I.C 783 see also Kwai Tong Kee v. Lim Chaung Ghee A.I.R 1928 Rang. 157 , 110 I.C 744 , 6 Rang. 131. Their Lordships of the Rangoon High Court pertinently observed as follows:
“It is clear that the decree-holders in the Small Cause Court by attaching the properties in this established a claim thereto and under S. 63 that claim has to be determined by this Court as the Court of highest grade. If S. 73 be read as meaning that, unless application was made to this Court for execution, the attaching creditor has no claim to rateable distribution, the provisions of S. 63 would be rendered to a large extent nugatory. Under S. 63 the assets are held by this Court but they are held by it not only on its own behalf but also on behalf of other attaching Courts.”
2. It would therefore appear that it was unnecessary to make an application for execution of the decree as a preliminary to the assertion of a claim for rateable distribution.
3. I may also incidentally refer to the case, R.S. Kholkute v. Tukaram Kunbi, A.I.R 1928 Nag. 332.
4. For the aforesaid reasons it appears to me that the learned Subordinate Judge's order is erroneous. I therefore set aside the order and send the case back to his Court for taking further proceedings in execution. As the non-applicants are absent and the proceeding is uncontested, I make no order as to costs.
P.N/R.K
5. Order set aside.