JUDGMENT
Basil Scott, Kt., C.J.
1. This is an appeal by the appellant from a judgment passed by the District Judge with reference to certain execution proceedings against him.
2. Two creditors had obtained decrees and attached certain immoveable property of the appellant, and other creditors had obtained decrees but had merely put in applications for execution without issuing attachment. The 22nd of September 1909 was the date fixed by the Court for the sale of the attached property, and upon that date a third person, at the instance of the appellant, came to the Court with sufficient monies to satisfy in full the decretal claims of the two attaching creditors. The money was accepted by the Nazir of the Court and a receipt therefore was given to the person making the payment. The payment so made was made according to the provisions of Order XXI, Rule 55, which says that where the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court the attachment shall be deemed to be withdrawn.
3. Upon this payment being made the appellant considered himself free from any danger, for the moment, of the sale in execution of his immoveable property, but on the following day the 23rd of September, an ex parte application was made to the Court for distribution of the money paid for the purpose of satisfying the claims of the attaching creditors, and it was urged that the money was assets which were distributable rateably among all the creditors who had applied for execution.
4. On the 27th of September 1909, the Judge assented to the contention of the applicants and ordered rateable distribution of the monies so paid into Court and sale of further properties which had been attached towards further satisfaction of the claims of the judgment-creditors.
5. Against this order an appeal was preferred to the District Court by the appellant, but long before it came on for hearing the sale of the other properties had taken place. That sale was held on the 26th of January 1910.
6. On the 21st of February 1910, the appellant applied that the sale should not be confirmed but his application was dismissed on the 14th of April 1910.
7. From that order of dismissal the appellant appealed to the District Judge who, on the 30th of June 1910, dismissed the appeal.
8. In June 1911, the appeal against the order of the 27th of September 1909 came on before the District Court, but, as the question of the confirmation of the sale had already been decided by that Court adversely to the appellant, no further proceedings were taken on the appeal against the order of 27th of September; and the appellant comes to this Court in appeal against the order of the 30th of June 1910.
9. It was objected at the outset that this was a case in respect of which no second appeal lay.
10. We are of opinion; however, that it is a question in execution between the parties to decrees and therefore falls under the provisions of Section 47 of the Code and is appealable to this Court.
11. The main ground upon which the pleader for the appellant has based his argument is that by virtue of the payment on the 22nd of September 1909 the attachments upon the property must be deemed to be withdrawn, and that if there was no attachment upon the property the Court was not justified in ordering a further sale of the properties, nor was it justified in treating the monies which had been paid in for the purpose of satisfying the attaching creditors’ decrees and raising the attachment as assets held by the Court which were distributable among other judgment-creditors who had merely applied for execution.
12. We think that the appellant is light in both contentions. Property can only be brought to sale after it has been duly attached, and if the attachment came to an end upon the payment into Court on the 22nd of September 1909, the property was not duly attached at the time of the sale in January 1910. We think this is clear from the terms of Rule 55, Order XXI; but if further authority is required we may refer to the judgment of the Madras High Court in Vibudhapriya Tirthaswami v. Yusuf Sahib (1905) I.L.R. 28 Mad. 380.
13. The question remains whether the money paid into Court for a particular purpose can be treated as assets distributable under Section 73 of the Code. That section provides that “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.” In the reference to “the costs of realization” we have an indication that the legislature contemplated that the assets referred to should be assets held in the process of execution. If we were to hold that money paid into Court under Order XXI, Rule 55, was assets held by the Court within the meaning of Section 73, we should be only nullifying the provisions of Rule 55; for, there would be no inducement to any judgment-debtor to procure a payment into Court of the amount of the claim of his attaching creditor if the money could at once be absorbed by rateable distribution amongst a number of other creditors.
14. For these reasons, we reverse the order of the lower appellate Court, set aside the sale, and remand the Darkhast to the lower Court for disposal according to law.
15. The appellant will have his costs in this Court and the two lower Courts.
