1. The defendant respondent obtained two decrees in February, 1916, in the Court of the Additional District Judge, Amraoti, against Karkaji. The plaintiff appellant obtained a decree against the same judgment-debtor in the Court of the Subordinate Judge, Amraoti, in August, 1916. Both parties in execution of their respective decrees had Karkaji's field attached.
2. The field was sold in execution of the defendants' decree and the purchase-money was deposited in fall by the 9th February, 1917 in the Court of the Additional District Judge.
3. On the 1st February, 1917, the plaintiff made an application (Ex. P-3), for rateable distribution to the Additional District Judge who declined to take action until the decree was transferred to his Court. On the 7th February, 1917, the plaintiff applied to the Subordinate Judge for a transfer of the execution case to the Additional District Judge's Court. The Subordinate Judge declined to transfer the case until the sale of some property already attached and ordered to be sold by him was confirmed.
4. The defendants' decree was fully satisfied out of the sale proceeds in the Additional District Judge's Court. The plaintiff only got the balance towards the satisfaction of his decree. He alleges that if rateable distribution had been made he would have got Rs. 511-12-0 more than he actually got. He sues for this amount with interest. The trial Court decreed the claim. The lower Appellate Court dismissed it. The plaintiff appeals.
5. The only one of the defendants' pleas with which we are now concerned is that the plaintiff was not entitled to rateable distribution as he had not made a proper application therefor under Section 73 of the CPC. In his application the plaintiff stated that the defendants had in execution of their decree for Rs. 4,540-3-2 got the property attached and sold for Rs. 6,000, that the amount was deposited in Court, and that the applicant had also attached the property in execution of his decree for Rs. 2,771-2-9 and prayed that orders be passed for rateable distribution. One of the conditions which must exist before a decree-holder may be entitled to a rateable distribution is that he must prior to the receipt of assets have applied to the Court by which the assets are held for execution of his decree, Chunni Lal v. Jugal Kishore (1905) 27 All. 132 , 1904 A.W.N 188 , 1 A.L.J 519. Such an application must be in the form prescribed by Order XXI, rule 11(2), The plaintiffs application to the Additional District Judge cannot be deemed to be an application for execution of his decree; Ramjus Agarwala v. Guru Charan Sen (1910) 11 C.L.J 69 , 3 I.C 105 , 11 C.W.N 396 and A.L.A.R Arunachellam Chettiar v. P.S.K Haji Sheeh Meera Rowthar (1911) 34 Mad. 25 , 7 I.C 856 , (1910) M.W.N 688. There being no proper application under section 73 the plaintiff's claim was rightly dismissed.
6. The appeal fails and is dismissed with costs.
7. Appeal dismissed.