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1. This is a defendant's appeal, the appellant being one Lal Singh Nayal. It appears that Jiwa Nand, plaintiff, had a decree against a man named Makoliya, who was admittedly the father of a joint Hindu family. After the death of Makoliya, Jiwa Nand took out execution, impleading the sons of Makoliya as legal representatives of the judgment-debtor. The family estate was put to sale, and Rs. 700 odd were realized. Before the receipts of the assets defendant-appellant Lai Singh Nayal and defendant-respondent Nitya Nand applied for rateable distribution under Section 73, Civil P.C., and their applications were allowed by the executing Court. It appears from the evidence of Eupua, one of the sons of Makoliya, that after their father's death the four sons accepted liability in respect of a debt due from Makoliya to Lai Singh Nayal and executed separate promissory notes in the sum of Rs. 200 each. This position is not contested by learned Counsel for the defendant-appellant. After the death of Makoliya, Lai Singh Nayal obtained decrees against the sons; and defendant-respondent Nitya Nand also obtained a decree against them on foot of a promissory note which had been executed by Gopia, one of the sons, but which related to a debt due from their father. Gopia executed the promissory note on his own behalf and on behalf of his brothers.

2. Jiwa Nand, being aggrieved by the executing Court's order granting rateable distribution to Lai Singh Nayal and Nitya Nand, instituted a suit under Section 73, Clause (2), Civil P.C., claiming that his decrees and the decrees of the two defendants were not passed against the same judgment-debtor within the meaning of Section 73(1), Civil P.C., and therefore the defendants were not entitled to rateable distribution. The suit was dismissed by the trial Court, but has been decreed by the lower Appellate Court. It is against this decree that Lai Singh Nayal has come to this Court in second appeal. Nitya Nand has not appealed. Section 73(1), Civil P.C., provides that where assets are held by a Court and more per. sons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons.

2. Admittedly, the decrees of the plaintiff and of the defendant-appellant (as well as the decree of defendant-respondent, Nitya Nand) are executable against the joint family estate, and it is argued on behalf of defendant-appellant, Lal Singh Nayal, that they must therefore be deemed to have been passed against the same judgment-debtor, as contemplated by Section 73, Civil P.C. The first authority to which I am referred by learned Counsel for the defendant-appellant is Nilmoni Dey v. Hiralal Das (1918) 5 A.I.R. Cal. 281. In that case two decrees were obtained against the estate of a deceased testator, each decree being against two out of three executors. One executor was common to both suits, and each decree was prima facie executable against the estate. It was held by a Bench of the Calcutta High Court that the decree-holders were entitled to rateable distribution of the assets under Section 73, Civil P.C., Mookerjee J. observed:

10. The last plea taken is as follows: A right of suit is given under Clause (2) of Section 73, and it is argued that in the absence of that provision there would be no right of suit at sill, and therefore the plaintiff, in order to Hiring himself within the terms of Clause (2), must satisfy all its conditions. One of those conditions is that the assets must be liable to be rateably distributed, whereas the plaintiff's case is that there is no liability for rateable distribution at all. Therefore, it is argued, he has no right of suit. I cannot say that I am very impressed with this argument. I am of opinion that the terms of this Sub-section (2) are wide enough to cover a case where the plaintiff claims that he is entitled to all the assets in the custody of the Court and that the defendant, who claims and obtains rateable distribution, is not entitled thereto. No appeal is provided under Section 73, Civil P.C., in respect of claims between rival decree-holders, and it can hardly have been the intention of the Legislature that an order of the executing Court granting rateable distribution should be final. For the reasons given above this appeal fails and is dismissed with costs. Permission to appeal under the Letters Patent is granted.