Bapna, J. - (1.) THIS is second appeal by the judgment-debtors in execution proceedings.
(2.) KANHAIYALAL respondent had a decree against the appellants Brij Mohanlal, Bherunlal and Rameshwar for recovery of money, which he had obtained from court of Munsif, Dausa, on the 11th of January, 1935. Various applications for execution of the decree were made, and the last one was presented on the 7th of April, 1953. The judgment-debtors filed an objection that the decree-holder had not presented any application for execution after 1944, and, therefore, the present application was barred by time. This subsequently boiled down to an objection that an application which had been presented on 16th March, 1 45, by the decree-holder was not an application in accordance with law, and if that application was taken out of consideration, the subsequent applications and the application now presented were time-barred. According to the facts stated in the judgment of the two courts, and which are not disputed, one Shyamlal had obtained a decree from the court of Munsif, Dausa, against the same judgement-debtors. Shyamlal had put his decree in execution for attachment and sale of the judgment-debtors' property. While proceedings were being held in the application for execution of Shyamlal's decree, Kanhaiya Lal decree-holder made an application on 16th March, 1945, in Form No. 6, Appendix E, C. P. C. , as required by O. XXI, r. 11 of the Code. In column No. 10 of the Form the relief claimed by the decree-holder KANHAIYALAL was that the property of the judgment-debtors was being sold in the other execution case, and the amount thus realised may be rateably distributed to the decree-holder KANHAIYALAL. The learned Munsif held that the execution application filed by the decree-holder, in which the relief of rateable distribution was claimed was one which could be taken as a step in aid of execution so as to save limitation, for the subsequent applications were within time under Art. 182 (5) of the Limitation Act. On appeal, the same view was upheld. Learned counsel for the judgment-debtors contended that the property of the judgment-debtors did not come to be sold in execution of the decree of Shyamlal, as a certain compromise took place between Shyamlal and the judgment-debtors, and. therefore, the petition for rateable distribution under sec. 73, even if made, was not within the four corners of that section. It was urged that the stage for rateable distribution only arose after the assets were realised, but if no assets came to be realised, then an application under sec. 73 was not competent. It was further argued that if an application under sec. 73 was incompetent, it could not be treated as a step in aid of the execution. Learned counsel relied on Umar Sharif vs. Rabda (1) It was finally contended that the asking for rateable distribution is as good as asking for rateable distri-bution of money lying in court, and an order for payment of such money was only a ministerial order. Reliance was placed on M. Noorul Hoda vs. Rai Nohar Prasad Verma (2) and Amolak Chand vs. Hoshiar Singh (3 ). It was urged that the lower courts had erred in relying on Balaji vs. Gopal (4) for the proposition that an application for rateable distribution could be treated as a step in and of execution. In may opinion this appeal has no force. While there is no doubt that the order directing rateable distribution comes only when the assets are realised, but the right for ratable distribution arises not when the assets are realised, but when there are applications of different decree-holders for execution of their decree for payment of money against the same judgment-debtor, and these applications are filed in court before the receipt of the assets. An order for rateable distribution is not a ministerial order, for the court has to take into consideration the various applications and to apply its judicial mind in-order to find whether the conditions laid down in sec. 73, C. P. C. had been fulfilled. If any authority was needed for this proposition, it would be found in Baij Nauth Prasad vs. Ghanshyamdass (5 ). The Patna and Lahore cases cited by learned counsel for the appellants are distinguishable inasmuch as the judicial order had already been passed, and the money had been lying deposited, and the decree-holder had only to withdraw the amount. Again, the Nagpur case, Uttar Sharif vs. Robda (1) is not relevant for the purpose of the present case, for it says no more than this that there must be assets held by a court before the applicability of sec. 73 can take place. In that case, some money had been deposited by the judgment-debtor in execution of the decree of a particular decree-holder, and the rival decree holder was not held entitled to a rateable distribution. The two courts have also committed error in relying on Balaji's case (4) for coming to the conclusion that an application for rateable distribution would amount to a step in aid of execution. In Balaji's case, a question was referred by one of the Judges to a Division Bench, viz: - "whether the view expressed by Kotval, A. J. C, in Dwarkadas vs. Ghasiram (6) is not too narrow? Is it necessary for a creditor, claiming on the strength of a money-decree rateable distribution from the proceeds of a sale of his debtor's property about to take place at the instance of another creditor, to ask himself for attachment and sale of that property, or is it sufficient to merely ask for rateable distribution?" The answer given was that the decision in Dwarkadas' case was correct, and that a creditor, claiming rateable distribution on the strength of a money decree, must himself ask for attachment and sale of the property or for execution of his decree by one of the modes specified in O. XXI, r. II. The case of Dwarkadas (6) was very simple. The decree-holder, who claimed rateable distribution had applied for such distribution without putting his decree in execution in the court by which the assets were had. It was, therefore, held in the case of Dwarkadas (6) that the claim was not enforceable. In Balaji's case there is an observation that an application which does not specify the way in which the assistance of the court is sought for executing the decree according to O. XXI, r. 11, is not an application for execution according to law, even though it may be application which can be considered as a step in aid of execution so as to save limitation. The point was not decided whether such an application could be treated as step in aid of execution. What Balaji's case, therefore, decided was that a mere application for rateable distribution would not be a proper application for execution. The question which was decided in Balaji's case was with reference to a previous case, viz. , Dwarkadas vs. Ghasiram (6), and what the subsequent Nagpur case decided was that the view taken in the earlier case was correct. As stated above, there was no application in the form required by O. XXI, r. 11 of the Code of Civil Procedure before the court in that case. A case direct in point is to be found in Mt. Deoraji Kuer vs. Jadunandan Rai (7 ). In this case the property of the judgment-debtor was being attached and sold in execution of a certain decree and the decree holder after presenting his application in the printed form prescribed for an application for execution under O. XXI, r. 11, mentioned in column 10, which had a heading "the mode in which the assistance of the court is required", that the only property which the judgment-debtor had had already been attached in execution of the other decree and was to be put up for sale on the 20th March following. He, therefore, frayed that the decree-holder should be paid his decretal amount by rateable distribution of the amount realized at the auction sale. It was held that the application was a proper application in accordance with law. It is obivious that sec. 73 was intended to prevent certain sales in execution of different decrees when the decrees were for payment of money and the applications for execution were presented to one and the same court. If fresh attachment and sate would take place, there would be any amount of coufusion. Where therefore, the property of the judgment-debtor is being attached and sold in a particular decree the other decree-holders by praying for rateable distribution after filing an application for execution or by making that prayer in column 10 of the prescribed application, must be taken to have meant to say that the attachment and sale of the property of the judgment-debtor should cake place, and they should be paid their proportionate share in the assets. In my opinion, this is the only practical mode in which the assistance of the court can be sought. The mode of attachment of immovable property is given in O. XXI, r. 54, C. P. C. , and it is by an order prohibiting a judgment-debtor from transferring or charg-ing the property in any way. The effect of this prohibition is given in sec. 64, G. P. G. , and it is this that any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor or any debt contrary to such attachment is void as against all claims enforceable under the the attachment. According to the Explanation to that section claims enforceable under an attachment include claims for the rateable distribution of assets. The decree holders are entitled to rateable distribution to get the advantage of the attachment of the immovable property by the other decree-holders, and it is not necessary under the law that fresh attachment should be made, if no fresh attachment is required, further application becomes unnecessary. It has been held in Gobardhandass vs. Jung Bahadar (8) that O. XXI, r. 30, C. P. C. indicating the manner in which decrees may be executed is not exhaustive, and the relief of rateable distribution is permissible in a case of a decree for the payment of money. In my opinion, therefore, the application made by the decree-holder on 16th March, 19l5, in the form prescribed by O. XXI, r. 11, but in which the assistance of the court 13 only stated to be required by rateable distribution of money about to be realised by the court in execution of another decree was an application in accordance with law. The application of 16th March, 1945, being held in accordance with law as above, no further question remains for decision in this appeal. The appeal is accordingly dismissed with costs. 3. Learned counsel for the appellants prays for leave to appeal to a Division Bench. The prayer is rejected. .;