1. The facts of this case-are sufficiently clear from the lower Court's order and need not be repeated here. The present applicants were decree-holders against non-applicant 3, Baldeopuri in Suit No. 7 of 1925. The latter's malik makbuza fields had been attached and were sold on 7th March 1927, and the proceeds some Rs. 5,700 were all paid into Court on 16th March 1927. Meanwhile, the non-applicant 1, Tukaram, applied for rateable distribution in the lower Court on 25th February 1927, under Section 73, read with O. 21, R. 11 of the CPC. In the case of Tukaram's decree, execution application had been made on 21st August 1926, but it was dismissed in November of the same year. A second application followed on 17th January 1927, and the fields were attached, but the second application was dismissed on 25th February 1927. The actual certificate was, however, not received until 26th April in the same year, and the question which remains for consideration is whether rateable distribution was properly allowed by the lower Court, although the decree had not been transferred at the time of the application to this Court.
2. A view favourable to the present applicants has been taken by the Bombay High Court in Nimbaji Tulsiram v. Vadia Venkati [1892] 16 Bom. 683 and in Dattatraya v. Rahimtulla Nurmahomed Khoja [1894] 18 Bom. 456.
3. The view taken in Nimbaji Tulsiram v. Vadia Venkati [1892] 16 Bom. 683 was, however, overruled by a Full Bench of the Bombay High Court in Chhotalal v. Nabibhai [1905] 29 Bom. 528 , 7 Bom. L.R 567 and it may be said, therefore, that there is now a uniformity of agreement between the various High Courts on the point involved so far as non-applicant 1 is concerned: cf. Clark v. Alexander [1894] 21 Cal. 200, Har Bhagat Das v. Anandaram [1898] 2 C.W.N 126, Narasimhachariar v. Krishnamachariar [1914] 26 M.L.J 406 , 23 I.C 909 , 1 M.L.W 403 and Arimuthu Chetty v. Vyapuri Pandaram [1911] 35 Mad 588 , 21 M.L.J 505 , 8 I.C 852 , (1911) 1 M.W.N 47. The point involved has again and again been considered in these and other similar cases and I see not the slightest ground for once more reopening this matter. I may point out that there is no express provision of law that there should be an actual transfer of the decree to the Court granting rateable distribution in this connexion I may also refer to the provision contained in sub-Section (2), Section 63 of the CPC. So far as non-applicant 1, Tukaram is concerned, therefore, I am of opinion that the order of the lower Court was a correct one.
4. In the case of non-applicant 2 Jagannath, the actual facts are not, in reality, disputed. The Court of the Subordinate Judge, Second Class, Katol, had been closed for a few weeks from the end of January 1927, until the beginning of the March of that year. During this closure non-applicant 2, applied to the Court below stating that, as the Katol Court was closed, he could not obtain a transfer certificate but he claimed rateable distribution. His application was treated as one for execution and he was accordingly eventually allowed to share in rateable distribution. The certificate, however, was not received from the Katol Court until 31st March 1927, and the contention urged on behalf of the present applicant is that there was no sufficiently formal application giving the particulars required by O. 21, R. 11 of the CPC. I have been referred to the decision in Dwarkadas v. Ghasiram A.I.R 1921 Nag. 5 , 17 N.L.R 143 as well as to the decision of Baker, J.C, dated 24th February 1925, in Ali Muhammad v. Muhammad Noor A.I.R 1925 Nag. 382 in favour of the proposition that here there had been no sufficient compliance with the requirements laid down in O. 21, R. 11 of the CPC. In view of the exceptional circumstances of the present case, it is difficult to see what more this non-applicant could have done in view of the fact that the Katol Court was temporarily closed. The case is one in short, in which the present applicant is attempting to obtain his personal advantage by relying on an ultra technical interpretation of the law applicable: cf. Maharashtraya Jnan Kosh Mandal v. Bijjulal A.I.R 1923 Nag. 182 , 19 N.L.R 36, and I do not think that there is any substance in the applicant's present, position. Non-applicant 2, had, in the peculiar circumstances of the present case, done everything he could but was unable, at the moment, to obtain the transfer certificate, and his application to the Court of the 1st Subordinate Judge, First Class, Nagpur, stated the fact as to his being unable to obtain this certificate owing to the temporary closure of the Katol Court and declared his intention of applying for rateable distribution. When this application is read with the transfer certificate subsequently received all the requirements of the law seem to me to have been duly complied with and I am of opinion that, in the circumstances, the lower Court was correct in granting rateable distribution.
5. These findings govern the application which is dismissed. The applicants must bear the non-applicants' costs. Costs in the lower Court as already ordered. I fix Rs. 20 as pleader's fees, costs accordingly to be allowed separately to non-applicants (1) and (2) in this Court.
A.L/R.K
6. Application dismissed.