R C Mitter, J - (1.)The petitioner instituted a suit for recovery of money against opposite parties Nos. 2 to 8 in the Second.Court of the Munsif at Feni, being Money Suit No. 501 of 1934. Some immoveable property of the said opposite parties was attached before judgment on 19th March 1934, on his application. He obtained his decree on 4 September 1934, and on 4th February 1935, applied for execution of his decree in that Court (Money Execution Case No. 32 of 1935). The opposite party No. 1 also obtained a money decree against the said opposite parties Nos. 2 to 8 in a suit instituted by him in the first Court of the Munsif at Feni and on 19 November 1934, applied in that Court for execution (Money Execution Case No. 445 of 1934). The properties which had been attached before judgment by the petitioner were attached by the First Court of the Munsif at Feni on 20 December 1934. In the sale proclamation issued by that Court, 11 March 1935 was the date fixed for sale. On 8 March 1935, the petitioner made an application to the Second Court of the Munsif at Feni, in which Court his application for execution was pending. In that application he stated that the opposite party No. 1 was executing his decree for money against the same judgment-debtors in the first Court and that 11 March 1935 had been fixed for sale. He prayed for rateable distribution. On that application the Second Court passed an order on the same date requiring petitioner "to show papers" that the judgment-debtors were the same." The next day the petitioner satisfied the Court that the judgment-debtors were the same and on that the Court (Second Court of the Munsif at Feni) passed order No. 5 dated 9 March 1935, in these terms: 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 18 March 1935, the Second Court passed the following order: "(Order No. 6) Put up on 27 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 11 March 1935, but before its arrival that Court had allowed by its order No. 6, dated 11 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 9 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 11 or 12 March, but it was held on 13 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 23 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 26 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 26 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 28 November 1935, the Second Court allowed this objection and recalled its order No. 5 dated 9 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 9 March 1935, is the correct order and prayed for its restoration.