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Judgment
Umamaheswaram, J.—This civil revision petition raises an interesting question of law as to the interpretation of Section 73, C.P.C. The petitioner herein filed Small Cause Suit No. 312 of 1952 and obtained a decree on 31-7-1952. He filed I.A. No. 878 of 1950 and obtained attachment before judgment of two National Savings Certificates standing in the name of the Defendant and given as security before the Collector of Guntur in respect of a licence issued in his name. The attachment before judgment was made absolute on 20-9-1950 after the suit was decreed.
The respondents herein filed Small Cause Suit No. 1 of 1949 on the file of the Subordinate Judge''s Court of Narasaraopet and attached the National Savings Certificates before judgment on 14-12-1950. Before they were so attached, the petitioner herein filed E.A. No. 672 of 1950 to cash the National Savings Certificates on 4-12-1950, but, as the order of attachment before judgment was passed by the Subordinate Judge''s Court, Narasaraopet, on 14-12-1950, the application was dismissed on 12-3-1951. The District Munsif of Bapatla, having cashed the National Savings Certificates, sent the amount to the Subordinate Judge''s Court of Narasaraopet, on 10-8-1951.
As per the directions of the. District Munsif, the petitioner herein filed E.A. No. 115 of 1951 before the Subordinate Judge, Narasaraopet, claiming that he was entitled to the full value of the National Savings Certificates. His contention was that the application by the respondents was made long after the receipt of the assets and that, therefore, the respondents were not entitled to an order for rateable distribution. The simple question for consideration is what exactly is the meaning of "assets" in Section 73.
The meaning of the expression "assets" given in the Concise Oxford Dictionary (4th Edn.) is
enough goods to enable heir to discharge debts and legacies of testator; property liable to be so applied; effects of insolvent debtor; property of person or company that may be made liable for debts.
In Webster''s Dictionary, the meaning given is "the entire property of all sorts belonging to a person, Corporation or an Estate."
The learned Advocate for the petitioner contended that the expression "assets" must be construed as including National Savings Certificates and that, as the National Savings Certificates were received in the Court of the District Munsif of Bapatla on 18-9-1950 long before the order of attachment before judgment was made by the Subordinate Judge''s Court, Narasaraopet, no rateable distribution should be ordered. Though no doubt "assets" may ordinarily mean every form of property, still I am not prepared to adopt the Dictionary meaning in construing the provisions of Section 73, C.P.C. The latter part of Section 73 furnishes a valuable clue as to the meaning of the expression "assets" and it runs in the following terms:
the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons.
If the expression "assets" is to be understood as meaning every form of property, the costs of realisation cannot be deducted out of the assets but only out of the moneys realised from and by the sale of the assets. So, I agree with the contention of the Advocate for the respondents that the expression "assets" in Section 73 means only money.
The only two decisions that are directly in point and brought to my notice in regard to the interpretation of the expression "assets" are those reported in - Deva Dutta Serogi and Sons Vs. P.C. Mitter and Sons, and - ''Jogesh Prasad v. Saligram Lachmi Narayan'', 45 Cal WN 674 (B). In Deva Dutta Serogi and Sons Vs. P.C. Mitter and Sons, at page 535, MacNair J. states as follows:
But this argument appears to me to beg the question, namely, what is the meaning of the word ''assets''?, and I can find no reported cases in which the term has ever been applied otherwise than to money. That this is the true meaning is substantiated by the provision that ''the assets after deducting the costs of realisation shall be rateably distributed''. I have no doubt that the word "assets held by court" must mean ''money held by a court'', for it is only money and not goods which can be the subject of rateable distribution.
In 45 Cal WN 674 (B) the. same construction was -adopted by a Bench of the Calcutta High Court. The observations which are apt and apply to the facts of this case are as follows:
The expression ''assets held by the court'' obviously implies the idea of assets realised or converted into cash, for unless the property has been converted into some form which renders it available for immediate distribution, the court cannot be said to have received or held such assets. I am not aware of any reported cases either under the present Section 73, Code of Civil Procedure, or u/s 295 of the old Code where it has been suggested that the expression ''assets'' could refer to anything else than money and the reason I think is that Section 73 is applicable only when the decrees are for money and the assets on which the court can operate under that section, must necessarily be money also.
The further question that was raised in 45 Cal WN 674 (B) was whether the cheque that was issued by the District Court could be regarded as "assets" and the learned Judges held that as the cheque was issued by the District Judge it might be regarded as equivalent to cash or money. I agree with those two decisions and hold that the expression "assets" in Section 73 must be understood as referring only to money.''
The learned Advocate for the petitioner sought to rely upon the difference between the language of Section 73 in the present Code and Section 295 (corresponding to Section 73) under the Code of 1882 as supporting his contention. Section 295 was in the following terms:
Whenever assets are realised by sale or otherwise in execution of a decree....
For those words, under the Code of 1908, the words "where assets are held by a court" have been substituted. The object of the amendment, in my opinion, is only to make available all assets which are held by a court and not necessarily those only which were realised by sale or otherwise in execution of a decree. It does not appear that it was intended to enlarge the meaning of the expression "assets" so as to include every form of property. There is, therefore, no force in this contention.
The next contention was based on the terms of Order 21, Rule 52, C.P.C. I agree with the learned Advocate for the petitioner, that a distinction is sought to be drawn in the second proviso to Order 21, Rule 52 between "the receipt of an asset" and "the realisation of an asset". If an asset means only money then, there can be no question of realisation of money, as distinguished from the receipt of money. So, even assuming that "asset" is used in a different sense in Order 21, Rule 52, I am not prepared to import the same meaning to the expression "assets" in Section 173 in the same way. Order 21, Rule 52 cannot also override the terms of Section 73. Moreover, the Collector had already sent the National Savings Certificates to the District Munsif''s Court, Bapatla, and the terms of Order 21, Rule 52 have really no application to the facts of this case.
As the application for attachment before judgment was made by the respondents before the National Savings Certificates were encashed, and the money was received by the Court, the respondents were rightly held to be entitled to rateable distribution.
In the result, the civil revision petition fails and is dismissed, but in the circumstances, I do not propose to award any costs to the respondents.