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Heard pleader. Prayer for rateable distribution of the assets to be fetched at the sale of the above Money Execution Case No. 445 of 1934 is allowed. Send a copy of this order to the local first Court for favour of passing necessary orders for rateable distribution. The claim of this case is Rs. 270-4-0.

2. On 18th March 1935, the Second Court passed the following order: "(Order No. 6) Put up on 27th April 1935 for rateable distribution with the Money Execution Case No. 445 of 1934 of the local First Court." The first mentioned order (No. 5) reached the First Court on 11th March 1935, but before its arrival that Court had allowed by its order No. 6, dated 11th March 1935, the decree-holder (opposite party No. 1) to bid at the sale, but on receipt of the said order, it passed on the same date order No. 7 which is in these terms:

Received the copy of Order 5 dated 9th March 1935, passed in Money Execution Case No. 32 of 1935 of the local Second Court. It appears that the decree-holder of the above execution case prayed for rateable distribution of the assets to be fetched at the sale of immoveables. The Nazir is accordingly directed to realise the purchase money in cash, so as to have the same rateably distributed between the decree-holders of both the cases.

3. Opposite party No. 1 did not proceed with the sale of lot No. 1. The sale of the other lots by the First Court could not be held on the 11th or 12th March, but it was held on 13th March 1935. Opposite Party No. 1 purchased one lot and the rest were purchased by a stranger, Sudhir Kumar Bhowmik. Earnest money of 25 per cent was deposited on that date, and the balance in April, within 30 days of the sale. An application to set aside the sale was made but was dismissed on 23rd September 1935. Thereafter the purchaser failed to deposit the landlord's transfer fee in respect of lot No. 5 with the result that the sales of lots Nos. 2 to 4 6, 7 and 8 were confirmed and the first Court passed an order on 26th September 1935 stating that the petitioner would get by way of rateable distribution the sum of Rs. 131-5-9. The said sum of money was placed to his credit and the second Court was informed by the first Court. Opposite Party No. 1 thereafter filed on 26th September 1935 in the second Court an objection to the claim for rateable distribution which had been made by the petitioner in the Court and had already been allowed. On 28th November 1935, the Second Court allowed this objection and recalled its order No. 5 dated 9th March 1935. It held that (a) it had no jurisdiction to order rateable distribution as the assets were held not by it, but by the First Court and (b) that the petitioner had no right to rateable distribution as he had not made an application for execution of his decree to the first Court which held the assets. It is against this order that the petitioner has moved this Court. He maintains that Order No 5 dated 9th March 1935, is the correct order and prayed for its restoration.

4. The question involved depends upon the interpretation of Sub-section 63 and 73, Civil P. C. There is a mass of case law on the subject and the High Courts have taken divergent views, and as I read the case law, there is sharp conflict of opinion in the decisions of the Madras and Bombay High Courts, but so far as this Court is concerned except for one or two decisions, a well-marked, definite and consistent course has been taken. Before reviewing the important decisions of the different High Courts, it is necessary that the precise scope of Sub-section 63 and 73 should be examined. At the outset one fundamental identity and one fundamental distinction are apparent. The scope of both the sections is the fair distribution of the proceeds of sale among the judgment-creditors of the common judgment-debtors, certain conditions being fulfilled by the former. That is the common feature. But the fundamental distinction is that the fund available for distribution under Section 73 among those creditors is the entire fund realized or received by the executing Court. (I am not considering the proviso which may be left out of consideration for the present purpose.) The funds available for distribution under Section 63 are the proceeds of common property attached by the judgment-creditors. It is the fact of attachment and attachment of the identical properties by the several judgment-creditors that bring into operation Section 63. To make the point clear, the following two illustrations are helpful: (1) A, who has a decree for payment of money against J, executes his decree in the Court of a particular Subordinate Judge and sells the judgment-debtor's properties, X Y and Z. If other persons B, C and D who have decrees for payment of money against the same judgment-debtor apply for execution of their decrees in the Court of the said' Subordinate Judge before the receipt of the proceeds of the sale of X, Y and Z, the whole of the proceeds of the sale will have to be rateably distributed amongst A, B, C and D under Section 73. B, C, and D need not have proceeded further beyond making their application for execution in that Court. A, who has a decree for payment of money against J, executes his decree in the Court of a particular Subordinate Judge and attaches and sells properties X, Y and Z the proceeds of which are received by that Court. B, C and D, who have decrees for payment of money against J, proceed to execute their respective decrees in other Courts, say the first, second and third Court of the Munsif of a particular place, and attach respectively X, Y and Z. These attachments are effected before the sale proceeds are received by the Subordinate Judge. They do not apply for execution of their decrees in the Court of the Subordinate Judge, nor are their executions transferred to that Court before the receipt of assets by that Court, but they bring the fact of the attachments to the notice of the Subordinate Judge. The entire proceeds of the sale of X, Y and Z cannot be distributed by the Subordinate Judge amongst A, B, C and D rateably under Section 63, but the proceeds of the sale of X has to be distributed rateably between A and B, those of Y between A and C and those of Z between A and D. This view which I am taking of the scope of Section 63 has been advanced by Abdur Rahim, J. in Arimuthu Chetti v. Vyapuripandaram, (1912) 35 Mad 588. The relevant passage in the judgment is at p. 590 and runs as follows:

5. Section 63 contemplates the case where attachments of the same property have been made by different Courts at the instance of the different decree-holders of the common judgment-debtor and provides for the distribution among them of the proceeds of the attached property by one of Courts only. The principle underlying it is the principle of convenience, the principle of avoiding multiplicity of proceedings, the principle of fair distribution and not the principle of exclusion. The distribution is to be made by the superior Court, and if all the Courts be of the same grade, the distribution is to be made by the Court which first attached the property. Any other view of Section 63 would make the position manifestly unjust. A person obtains a decree for money over Rs. 5,000 in the Court of the Subordinate Judge, applies for execution there and attaches a property. Another person obtains a decree for money against the same judgment-debtor for Rs. 500 in a Munsif's Court, applies for execution there and attaches the same property. The Munsif being unaware of the attachment effected by the Subordinate Judge, sells the property before the Subordinate Judge could put it up for sale. The sale by the Munsif would be a valid one. If Section 73 is to be regarded as the only section for rateable distribution, the person who obtained the decree for over Rs. 5,000 in the Subordinate Judge's Court would not be able to claim rateable distribution, if the terms of Section 73 be strictly construed and Section 63 be not looked into, because he would not, as has been pointed out in Nilkanta Rai v Gosta Behary 1919 Cal 545 and Deckappa v. Chanbasappa 1925 Bom 420, be able to apply for execution of his decree in the Munsif Court, by reason of the limited pecuniary jurisdiction of the Munsif.