1. We are invited in this Rule to set aside an order made ina proceeding for rateable distribution under Section 73, Civil Procedure Code.The sequence of events which led to the order in question is really not incontroversy and may be briefly stated. On the 23rd August 1915, one Banerjee,now opposite party in this Rule, obtained a decree for Rs. 22,441 againstSullivan on the Original Side of this Court. On the 26th August 1915, oneMohammad Abbas obtained a consent decree against Sullivan for Rs, 5,200 in theCourt of the Subordinate Judge of the 24-Pergannahs. On the 31st August 1915,Galstaun, petitioner in this Rule, obtained a decree for Rs. 8,105 againstSullivan on the Original Side of this Court. On the 21st and 22nd September1915, a considerable sum was realised by a sale of the moveable properties ofthe judgment-debtor held by Mackenzie Lyall and Co. under the orders of theSubordinate Judge. The question in controversy is whether Galstaun is entitledto rateable distribution of the sale-proceeds. To appreciate the preciseposition of the rival claimants, we must examine in detail the proceedingstaken for execution of the three decrees.

2. As regards the first decree, we find that a precept wason the 24th August 1915 sent to the Court of the Subordinate Judge underSection 46, Civil Procedure Code, and the moveable properties of thejudgment-debtor were attached on that basis. On the 6th September 1915, anorder was made by this Court for transfer of the decree to the Court of theSubordinate Judge of the 24-Pergannahs for execution. As regards the seconddecree, we find that Abbas applied for execution on the 8th September 1915. Onthat very day, an order was made for sale of properties by Mackenzie Lynll andCo., but the proceeding thus initiated was dismissed on the 20th September, asAbbas had in the interval transferred the decree to Banerjee. On that very day,Banerjee made an application to execute the decree as assignee thereof. Thesale previously mentioned was held by Mackenzie Lyall and Co. on the 21st and22nd September 1915. As regards the third decree, we find that Galstaun was notable to obtain an order for transfer from this Court to the Court of theSubordinate Judge, till the 15th December 1915; and his application forexecution was not made before the Subordinate Judge till the 14th March 1916.Mackenzie Lyall & Co. sent a cheque to the Subordinate Judge on the 15thMarch 1916 for Rs. 12,637, the net proceeds in their hands. The questionarises, whether, in these circumstances, Galstaun is entitled to obtainrateable distribution under Section 43, Civil Procedure Code.

3. The first sub-section of Section 73 is in these terms;"Where assets are held by a Court, and more persons than one have, beforethe receipt of such assets, made application to the Court for the execution ofdecrees for the payment of money passed against the same judgment-debtor andhave not obtained satisfaction thereof, the assets, after deducting the costsof realisation, shall be rateably distributed among all such persons." Twoof the requisite elements are established in this case; namely, first, assetsare held by the Court of the Subordinate Judge; and secondly, each of thedecree-holders has obtained a decree for payment of money against the samejudgment-debtor and has not obtained satisfaction thereof. The question,consequently, reduces itself to this: who among the rival claimants did, beforethe receipt of the assets by the Court, make an application to the Court forexecution of his decree In the determination of the question, two pointsrequire consideration, namely, first what was the true position of MackenzieLyall and Co. when they held the sale of the moveable properties on the 21stand 22nd September 1915; did they hold the sale as the agent of the Court or asthe agent of the judgment-debtor Sullivan Secondly, was the receipt of moneyby the auctioneers equivalent to "receipt of assets by the Court"within the meaning of Section 73, Code of Civil Procedure

4. The determination of the fist question depends upon theterms of the consent decree made in the suit between Abbas and Sullivan and thetrue significance of the proceedings taken for the enforcement of that decree.It is indisputable that the sale was held, not in execution of the first or thethird decree, but in a proceeding on the basis of the second decree. Was thesale, then, held on the basis of the second decree by Mackenzie Lyall and Co.as in execution of that decree or was it held at the instance of thejudgment-debtor and was in essence a private sale for his benefit alone Theanswer depends upon the true construction of the consent decree, in which, ashappens frequently, sufficient care was not taken to set out precisely thereliefs granted to the successful litigant. That decree, as we read it,provides that the defendant Sullivan will sell, through Mackenzie Lyall and Co.the whole of the furniture belonging to him, and, according to the terms of thecompromise, will pay out of the net sale-proceeds the sum of Rs. 5,200 to theplaintiff; that if the net sale-proceeds be not sufficient to pay the whole ofthe said sum, the proceeds shall be paid in part-payment of the said sum of Rs.5,200 and the plaintiff will recover the balance from the defendant; that forthe payment of the said sum of Rs. 5,200, the furniture or the net sale-proceedsthereof shall in the meantime be charged in the first instance with the paymentof the said sum to the plaintiff." This decree clearly contemplated a salein the first instance by the defendant himself through Mackenzie Lyall and Co.and payment by him to the decree-holder of the sum of Rs. 5,200 out of the netsale-proceeds. It was with reference to this aspect of the consent decree that,as soon as it was made, the Court instructed Mackenzie Lyall and Co. to sellthe furniture. Difficulties, however, arose from the conduct, of thejudgment-debtor who was, for some unexplained reason, unwilling to proceed withthe sale, and what had been contemplated by the decree was not carried out. Theresult was that, on the 8th September 1915, the decree-holder was driven toapply to the Court for execution and for an order upon Mackenzie Lyall and Co.to sell the moveables. This application was granted and an order was made asprayed. Whether such an order was or was not contemplated by the decree, it isnot for us to determine in the present proceedings. But the fact remains thatthe Court issued instructions to Mackenzie Lyall and Co. to sell the furniture,and the correspondence between the Court and the auctioneers indisputably showsthat the auctioneers proceeded to sell the moveables of the judgment-debtor,not at his request, but under the orders of the Court. Before the sale couldactually be held, the decree had, however, been assigned by Abbas to Banerjee.Banerjee, as we have seen, thereupon applied for execution as assignee underRule 16 of Older XXI of the Code, and prayed that fresh instructions might beissued to the auctioneers to hold the sale of the moveables of thejudgment-debtor. The Court held that such a step was unnecessary, obviously onthe ground that instructions had already been issued to the auctioneers on theapplication for execution made by Abbas. The sale was then held on the 21st and22nd September and a large sum of money was realised. It has been contendedhere that this was a sale held, not in execution at the instance of the Court,but rather at the instance of the judgment-debtor Sullivan pursuant, to theagreement between him and his creditor Abbas. In support of this argument,reference has been made to the decision in Golam Hossein Cassim Arif v. FatimaBegum 6 Ind. Cas. 300 [LQ/CalHC/1910/176] : 16 C.W.N. 394. Stress has also been laid on thecircumstance that the steps contemplated by the Code of Civil Procedure asnecessary preliminaries to a valid sale held at the instance of the Court werenot taken in this case, because the properties were not attached and therequisite notices were not issued. In our opinion, it is fairly clear, on theproceedings taken in their entirety, that the sale was held by the Courtthrough the agency of the auctioneers. The employment of agents for the conductof a sale of this description is clearly contemplated by Rule 65 of Order XXIof the Code, which provides that, save as otherwise prescribed, every sale inexecution of a decree shall be conducted by an officer of the Court or by suchother person as the Court may appoint in this behalf and shall be made bypublic auction in the manner prescribed. In the present case, the personappointed by the Court, under Order XXI, Rule 65, was no doubt the very personnominated by the parties at the time the consent decree was made. It is alsotrue, as observed by Ray, L.J., in the case of Huddersfield Banking Co. v.Lister (1895) 2 Ch. 273 : 64 L.J. Ch. 523 : 12 R. 331 : 72 L.T. 703 : 43 W.R.567 that a consent order is a mere creature of agreement and carries out theagreement between the parties, or as Parke, J., puts it in Wentworth v. Bullen9 B. & C. 840 : 9 L.J. (O.S.) K.B. 33 : 109 E.R. 313 the contract is notthe less a contract and subject to the incidents of a contract, because thereis superaded the command of a Judge. But it is nevertheless an order of theCourt and possesses one at least of the essential characteristics of an ordermade by a Court of Justice, namely, it is an order capable of execution by the Court.In the case before us, the agreement of the parties that the moveableproperties of the judgment-debtor would be sold by Mackenzie Lyall and Co. wasaccepted by the Court and embodied in the decree. The inference follows thatwhen, upon the application of the judgment-debtor, the Court instructedMackenzie Lyall and Co. to hold the sale, the Court took a step in executionand the sale was held in execution by a person appointed by the Court in thatbehalf. The decision of Fletcher, J., in Golam Hossein Gasdm Arij v. FatimaBegum 6 Ind. Cas. 300 [LQ/CalHC/1910/176] : 16 C.W.N. 394 does not militate against this view andis clearly distinguishable; that case only rules that a sale by a Receiver isnot a sale by the Court for the purpose of grant of a sale certificate. That principleobviously has no application to the case before us. It may be added that if thesale here be treated as a private sale held at the instance of thejudgment-debtor by an agent nominated by him, there would be no room for theapplication of Section 73, Code of Civil Procedure, and the application ofCalstaun for rateable distribution could not possibly be entertained. On thefirst question, we must consequently hold that Mackenzie Lyall and Co. held thesale at the instance of the Court and that the sale was in essence a sale bythe Court itself.

5. The determination of the second question involves thesolution of the problem whether receipt of the purchase-money by theauctioneers from the purchasers was equivalent to receipt of assets by theCourt within the meaning of Sub-section (1) of Section 73, Code of CivilProcedure. We have been invited to answer this question in the negative, on theauthority of the decision in Maharaja of Burdwan v. Apurba Krishna Roy 10 Ind.Cas. 527 : 15 C.W.N. 872 : 14 C.L.J. 50. That case is of no assistance in theexamination of the question raised before us. The sale there was of Immovableproperty; under the provisions of the Code, upon such a sale, one-fourth of thepurchase money is required to be paid into Court at the time the bid isaccepted; the remainder must be brought into Court by the purchaser within aprescribed time. The question in controversy was, whether assets could bedeemed to have been received by the Court within the meaning of Section 73before the entire purchase-money had been paid into Court. The answer was inthe negative, for the obvious reason that till the entire purchase-money hadbeen brought into Court, there was no completed sale on the basis whereof thesale proceeds could be distributed amongst the rival claimants. It is alsoclear that rateable distribution in that case was sought, not in respect of theone-fourth share of purchase-money paid into Court at the time of theacceptance of the bid, but of the entire purchase-money; and with reference toa three-fourths share thereof at least, there could be no controversy that theassets were not received till such portion had been paid into Court. The casebefore us is of an entirely different description. Here, what was sold was moveable property and the entire purchase-money was paid by the purchasers into thehands of the auctioneers in one instalment. The question thus arises, whetherthe receipt of the purchase-money by the auctioneers was receipt of the assetsby the Court. We are clearly of opinion that the answer must be in theaffirmative. The policy which underlies Section 73 obviously is to fix thepoint of time when the entire body of persons entitled to claim rateabledistribution should be finally ascertained; that point of time is the momentwhen the entire purchase-money has been paid by the purchaser. It is immaterialfrom this point of view, whether the purchase-money has been actually paid intothe treasury or into the hands of a person employed by the Court to hold the sale.This view is consistent with the elementary principle that when an auctioneerreceives the purchase-money as agent of the vendor, it is his duty immediatelyto account for it and pay over the balance due to the latter. This is inconformity with the decisions in Crosskey v. Mills 1 C.M. & R. 298 : 3 L.J.297 and Gray v. Haig 20 Beav. 219 : 52 E.R. 587 : 109 R.R. 396. We holdaccordingly that the assets in the present case were received by the Court forpurposes of Section 73 on the 22nd September 1915, and not on the 15th March1916 when the cheque was sent by the auctioneers. It is not necessary for us toenunciate a general principle of universal application that receipt of money byan agent is in all conceivable circumstances equivalent to receipt of money bythe principal, it is sufficient to hold that when a sale has been held by aCourt in execution under Order XXI, Rule 65, receipt of purchase-money by theagent is, for purposes of Section 73, equivalent to receipt of assets by theCourt. In this view, it is plain that the assets were received by the Court,before Calstaun applied for execution of his decree.

6. We desire to add that the view we take is clearlyconsistent with the broad justice of the case. It has been conclusively provedthat the delay in the transmission of the purchase-money by the auctioneers tothe Court was due entirely to the action of Galstaun himself. He made anapplication to this Court on the Original Side with a view to restrain theauctioneers from transmitting the sale proceeds to the Court of the SubordinateJudge. He obtained an ex parte order to this effect, on the allegation that themoney was held by them within the jurisdiction of this Court as agents of hisjudgment-debtor, Sullivan. The Court was subsequently apprised that the exparte order had been obtained on a suppression of the fact that the money wasin the hands of the auctioneers, not as the agents of Sullivan, but as theagents of the Court of the Subordinate Judge, who had directed the sale. Theresult was that the order was forthwith recalled and the auctioneerstransmitted the cheque to the Subordinate Judge without delay. The partiesshould clearly be placed in the position they would have occupied if theerroneous order had never been made. It would, in our opinion, have beenlamentable if, in such circumstances, we were constrained, upon a narrowconstruction of Section 73, to hold that the petitioner had by recourse to adevice succeeded in detaining the money in the hands of the auctioneers for severalmonths and thereby securing an advantage to which he would not otherwise beentitled under the law.

7. The result is that this Rule is discharged with costs. Weassess the hearing-fee at five gold mohurs.

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John Carapiet Galstaun vs. Woomesh Chandra Bannerjee andOrs. (21.07.1916 - CALHC)