Wanchoo, C. J. - (1.) IN this case a question has been put up by a learned single Judge of this court for answer by a Bench. It is as follows: - "whether the amount of the decree paid by the surety to the decree-holder outside the court can be said to be 'an asset held by the court' within the meaning of sec. 73 Civil Procedure Code?"
(2.) THE facts of the case may be briefly narrated to understand the point involved. THEre was a suit by Mathura Das Bulaki Das against Laxminarain and others. In that suit there was an attachment before judgment of the goods of Laxminarain and others. In that connection, Gulab Chand furnished security on the 20th of April, 1948, and agreed to pay the decretal amount in case a decree was passed against the defendant and they failed to pay up the decretal amount. It appears that] the attached goods were thereupon released. THEn followed a decree in favour of Mathura Das Bulaki Das. It was put into execution by them in 1949. It appears that Deena Nath, applicant, had also obtained a decree against Laxminarain and others. He applied for execution on the 28th of February, 1948, and for rateable distribution on the 17th of March, 1950. Soonafter, the execution court issued a notice to Gulab Chand surety on the 1st of April, 1950, to show cause why the decretal amount should not be realised by him by arrest. On the 8th of April, Gulab Chand appeared in court and wanted time. On the 22nd of April, which was the next date fixed, Gulab Chand again prayed for time to pay the amount. On the 24th of April, 1950, Gulab Chand did not appear but the decree-holder viz. , Mathura Das Bulaki Das filed a receipt in court showing that the decretal amount had been paid to him by Gulab Chand out of court. THEreupon, Deena Nath prayed that the decree-holder viz. , Mathura Das Bulaki Das should be ordered to deposit the amount that he had taken from the judgment-debtor in court so that it may be rateably distributed. THE trial court refused this prayer. THEreupon the present revision was filed in this court and the learned single Judge has referred this question to a Division Bench for decision. The relevant portion of s. 73 of the Civil Procedure Code reads as follows: - "where assets are held by a court and more persons 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. " The main question which has to be decided in this case is whether the assets were held by the court and were, therefore, distributable among those who had applied for rateable distribution. Learned counsel for the applicant relies mainly on two cases. The. first of these is Ghisulal vs. Todurmull (A. I. R. 1922 Cal. 19 ). In that case certain property belonging to the judgment-debtor had been attached before judgment but released on two persons standing as sureties. On execution, the sureties paid the amount in court. It was then held that the money so deposited was "assets held by a court' and was liable to rateable distribution. This case, in our opinion, is not in point because here the money was actually held by the court. The real question which was decided by this case was different viz. , whether the money deposited in this manner could be distributed at all to those who had applied for rateable distribution. This case dissented from the case of Sorabji Coovarji vs. Kola Raghunath (I. L. R. XXXVI Bom. 156), where it had been held that the money paid into 'court for a particular purpose could not be treated as 'assets distributable" under sec. 73, as the assets referred to in the case were assets held in the process of execution. The next case is Nur Mohammad vs. Rajaram (A. I. R. 1934 Nag. 62 ). In that case certain property was attached in execution and placed in charge of a Superaddar. When the time of sale came, the Superaddar failed to produce the property of the judgment-debtor which had been entrusted to him and the executing court issued warrants for attachment of the Superaddar's property to realize the value of the judgment-debtor's property. At the first warrant so issued, the Superaddar paid Rs. 40/- to the decree-holder who had gone with the process-server, to avoid the attachment. It was observed that this payment was made to the decree-holder simply because he happened to accompany the process-server. But for this accident, the money would have been paid to the process-server who would have deposited it in court. It was, therefore, held that though the money had been taken away by the decree-holder, it really was "an asset held by the court" and liable to reteable distribution. The distinguishing features of this case are that certain property of judgment-debtor was in actual attachment and had not been produced by the Supereddar who thus became liable for the value of that property to the court. When the process-server went with the warrant to attach the Superaddar's property, the Super-addar paid some money to avoid the attachment. That money should in normal course have been paid to the process-server who had to deposit it in court. It was merely an accident that the decree-holder was also present and took away the money. In those circumstances, there could be no doubt that the money amounted to ''assets held by the court", and was liable to rateable distribution. In the case before us, no property of the judgment-debtor was attached during the execution proceedings. We have already pointed out that presumably the property attached before judgment was released when Gulab Chand stood surety to pay up the decretal amount, if any, against Laxmi Narain and others. In the present execution proceedings, only a notice had been issued to Gulab Chand to show cause why he should not be made to pay the amount for which he had stood surety by being sent to jail. In these proceedings Gulab Chand appeared before the court and took time to pay the amount. Thereafter he paid the amount to the decree-holder out of the court and the latter certified payment to the court. We are of the opinion that in these circumstances no assets ever came to be held by the court and there can therefore be no question of rateable distribution of any amount to those who had applied under sec. 73 of the Code. In this connection, we may refer to certain cases in support of the view that we have taken. In Jadu Rai vs. ML Misri and others (A. I. R. 1920 Lah. 94 (1)), there were several decrees against a judgment debtor. The judgment-debtor also obtained a decree against a third person. One of the decree-holder applied for execution by attachment of the decree in favour of the judgment-debtor and there was a private arrangement by which the judgment-debtor paid a certain sum to the decree-holder. It was then held that the money obtained by the decree holder in this manner out of the court could not he said to be "assets held by the court" as it has never been paid into the court and was, therefore, not liable to rateable distribution. In another case Mallappa Anni-geri vs. Irappa Shidlingappa (A. I. R. 1943 Bom. 261), certain property had been attached to execution by a decree-holder and another decree-holder of the same judgment-debtor had applied for rateable distribution. While the execution was in force, the first decree-holder purchased the property privately from the judgment-debtor in satisfaction of his decree. It was then held that the other decree-holder could not assert his claim against the former decree-holder who had purchased the property in satisfaction of his decree privately. The basis of this decision was that no assets were held in court which could be rateably distributed. The next case to which we may refer is Shrimati Kedarwati vs. Radhey Lal (A. I. R. 1937 Pat. 609 ). In that case, a certain decree-holder had attached the property of his judgment-debtor in execution of his decree but before the sale by the court, he purchased the property by private treaty in satisfaction of the decree and the decree was thus satisfied. In such a case, it was held that there were no "assets held by the court" and consequently, no right to rateable distribution arose. In both the above cases, reliance was placed on the observations made by their Lordships of the Privy Council in Mina Kumari vs. Bijoy Singh (A. I. R. 1916 P. C. 238) where the following observations occurred at page 241: - "to bring sec. 295 into play certain conditions are necessary, and one of them is that there should be assets held by the court. " It may be pointed out that sec. 295 of the former Code of Civil Procedure, which was in question before their Lordships of the Privy Council, corresponds to sec. 73 of the present Code. Lastly, we may refer to the observations made by their Lordships of the Privy Council in M. L. M. Maha-lingam Chettiar vs. Ramnathan Chettiar and others (A. I. R. 1940 P. C. 173) at page 175 in which the true effect of sec. 73 is given as follows : - "the right of having the assets of a judgment-debtor rateably distributed amongst the executing creditors therein mentioned is confined to assets held by the court. Where one of the judgment debtor's assets is a decree for the payment to him of a sum of money which is liable to be extinguished by being set off against a cross decree against him, no assets representing that decree will ever come into the possession of the court if the right of set off be exercised. " The emphasis in all these cases is on the assets coming into the possession of the court. [in the case before us, the assets never came into the possession of the court whether in the shape of attached property or money. Under these circumstances, we are of opinion that the amount of the decree paid by the surety in this case to the decree-holder outside the court cannot be said to be "an asset held by the court" within the meaning of sec. 73 of the Code of Civil Procedure. Let this answer be returned to the Bench concerned. . ;