1. The point in this appeal is the same as in Second Appeals Nos. 111 and 156 of 1924. This judgment will govern these appeals also.
2. The facts are simple: four persons obtained decrees against the same judgment-debtor.
3. One of them, Mahammad Noor, who is the respondent in all these appeals, attached the house of the judgment-debtor and applied for sale. Before the sale took place, the other three decree-holders, who are the appellants in these three appeals, applied for rateable distribution, which was ordered. Mahammad Noor, however, raised an objection that rateable distribution should not be allowed. This objection was over-ruled, so he filed three regular suits for declarations that the other decree-holders were not entitled to rateable distribution. The first of these suits was dismissed by the Munsif, but on appeal the District Judge of Nagpur held that rateable distribution could not be ordered because the applications were not in proper form and the other two suits were decd accordingly. The appellants make these three appeals, urging that rateable distribution should have been allowed.
4. There is very little to be said in this appeal. The learned District Judge has correctly stated the law on the point. Before a person is entitled to rateable distribution under Section 73 of the CPC, an application for execution must be made. In the present cases no regular applications for execution have been made, as the prayer is only for rateable distribution of the assets.
5. Under O. 21, R. 11, sub-Section (2), clause (j) of the CPC, an application for execution must specify the mode in which the assistance of the Court is required. Under O. 21, R. 30, the modes of execution of a money decree are given and rateable distribution is not one of them. It has been held by this Court in Seth Maganmal v. Raja Raghunathrao 1924 Nag. 39 , 19 N.L.R 172 that proceedings for rateable distribution are of a non-judicial character. The present case is governed, as the learned District Judge has pointed out, by Dwarkadas v. Ghasiram [1921] 17 N.L.R 143 , 64 I.C 53. I entirely agree with the reasons given by the learned District Judge.
6. The learned pleader for the applicant has relied on O. 21, R. 11(2), clause (j)(v), which says: “otherwise, as the nature of the relief granted may require.” That, however, applies to the nature of the relief granted by the decree, e.g in a case of a decree for restitution of conjugal rights, and does not affect the present case. It is not a mere irregularity, as there was no application for execution to the Court, as required by Setion 73 of the CPC.
7. I see no reason for interference and dismiss the appeal with costs. The other two appeals will follow the result of this appeal.
8. Appeal dismissed.