D.D.Seth, J. - (1.) This is a decree holder's application in revision. The facts of the case, in brief, are that the applicant obtained a decree suit No. 3410 of 1947 from the Bombay High Court and got it transferred to the Court of District Judge, Agra, for execution. The decree, so transferred, was registered in the court of the District Judge, Agra in May, 1953. One Musaddi Lal had also obtained a decree against the judgment-debtor in suit no. 61 of 1955 from the court of the Civil Judge and put it in execution and prayed from rateable distribution on 9th July, 1955. The applicant filed an application on 23rd December, 1953 before the learned District Judge praying that the property of the judgment-debtor be attached and sold in execution of the decree. The learned District Judge ordered the execution proceedings to be transferred to the court of Civil Judge, Agra, on the same day. The attachment of the property took place in the court of the Civil Judge some time before 10th March, 1954. The opposite party had also a decree against the same judgment-debtor as a result of suit No. 64 of 1951 which had been decided by the learned Munsif, Agra. The opposite party put the decree in execution in the Munsif's court. On 18th November, 1955 the applicant filed an application before the learned Civil Judge to the effect that he had come to know that there are other execution proceedings pending against the same property of the judgment debtor in other courts and, therefore, rateable distribution should be allowed to him and the necessary amendment be made in the applicant's application dated 22nd December, 1953. This application was allowed the same day by the learned Civil Judge who ordered notice to be issued. The notice was served on the opposite party on 7th April, 1956. Subsequently on 7th July, 1956 the learned Civil Judge passed the following order: "Rateable distribution be made from the decree of S.N. 64/51 pending in the court of Munsif Agra." Before this order was passed sale of the judgment-debtor's property took place on 25/28th May, 1956 in execution proceedings pending before the learned Munsif Agra, and the sale amount was deposited in that court on 4th July, 1956. On 9th July, 1956 the learned Civil Judge issued a Robkar to the learned Munsif that the applicant's decree which he had obtained from Bombay High Court was for about Rs. 44,000/- and that the applicant be allowed rateable distribution out of the sale proceeds as a result of suit No. 64 of 1951. On 18th July, 1956 the opposite party filed objections in the court of the Munsif Agra, objecting to the applications of the two decree-holders for rateable distribution. The objections were that the applications for rateable distribution made by the two decree-holders were not legally maintainable as they were made after the auction sale and after the assets had been deposited in Munsif's Court on 4th July, 1956. The opposite party, therefore, urged that the assets held by the learned Munsif's court were not liable to be rateably distributed to the two decree-holders. The applicant filed a reply on 24th July, 1956 to the objections of the opposite party to the effect that his application for rateable distribution had been made on 18th November, 1955 in the court of the Civil Judge and had been allowed and, therefore, the applicant was entitled to rateable distribution.
(2.) The opposite party conceded that Musaddi Lal decree-holder was entitled to rateable distribution but in respect of the applicant's application he urged before the learned Munsif that the Robkar from the Civil Judge's court was received in the court of the learned Munsif on 9th July, 1956 while the sale assets had been deposited in Munsif's court on 4th July, 1956 and the sale had taken place on 25th/28th May, 1956. The learned Munsif partly allowed the objection and held that under Section 73 of the Code of Civil Procedure the applicant should have applied for rateable distribution before the receipt of the assets and since the Robkar from the Civil Judges' court was received after the sale proceeds were deposited, the applicant had not observed the mandatory procedure prescribed by law. He further held that had the decree in favour of the applicant been under execution in is court then no application for rateable distribution was necessary but as the applicant was executing his decree in a different court an application to the court which was holding the assets was necessary and as such the applicant was not entitled to rateable distribution.
(3.) It is against this order that the present application in revision has been filed in this court.;