JUDGMENT
1. This is a first appeal from order by an auction-purchaser. The facts which have given rise to this appeal are quite simple. Chiraunji Lal had a decree against one Jagdish Prasad. In execution of this decree he put up for sale the immoveable property of the judgment-debtor. The sale took place on 2nd September 1931. The property was purchased by Behari Lal, applicant, who paid one-fourth of the sale price on that very date. The balance of the sale price was deposited in the Imperial Bank by Behari Lal on 11th September 1931. On this date Ale Nabi, who had a claim against Jagdish Prasad, judgment-debtor, obtained a decree and immediately took a transfer certificate and presented it to the Munsarim of the Court in which the decree of Chiraunji Lal was being executed. He made an application for rateable distribution of assets. It so happened that the Munsarim of the Court refused to accept the application on the ground that it had been made after 3 p. m. Ale Nabi made an application under Order 21, Rule 90, Civil P.C. praying that the sale in favour of Behari Lal should be set aside. The trial Court held that Ale Nabi was incompetent to make an application for setting aside the sale as he was not a person entitled to share in the rateable distribution of assets. The result was that the application made by Ale Nabi was dismissed.
2. Ale Nabi preferred an appeal against the decision of the First Court. The lower Appellate Court came to the conclusion that Ale Nabi was competent to make an application for setting aside the sale and, therefore, the appeal was allowed and the case was remanded for decision of the application made by Ale Nabi under Order 21, Rule 90, Civil P.C. Against the decree of the lower Appellate Court Behari Lal, the auction-purchaser, has preferred an appeal to this Court. A preliminary objection was taken by the respondent to the effect that no appeal lay to this Court against the order passed by the lower Appellate Court. Learned Counsel appearing for the appellant conceded to this point but prayed that this application may be treated as a revision, and having regard to the facts placed before us we have acceded to this request and we treat this appeal as an application in revision.
3. Behari Lal, auction-purchaser, had deposited the three-fourths price of the property which he purchased, in the Imperial Bank on 11th September 1931. On the same date Ale Nabi put in his application for rateable distribution, but it was not accepted by the Munsarim. In our opinion, it was a proper presentation, and it was the duty of the Munsarim to accept the application, in spite of the fact that it had been made after 3 p. m. An applicant has a right to put his application or complaint any time during the Court hours. The mere fact that the Munsarim refused to accept the application on the ground that it was made after 3 p. m. is no reason for holding that the application was not duly presented on 11th September 1931. Lower Courts make rules fixing time when applications of various types should be presented for the convenience of the Court as well as for the convenience of the public, but the legal right of every applicant is that he is entitled to make his complaint or application any time during Court hours. So,' for the purpose of this case, we assume that the application for setting aside the sale by Ale Nabi was duly made by him on 11th September 1931, though it was not accepted by the Court till 12th September 1931.
4. The principal question for determination in this case is whether Ale Nabi is a person who was entitled to make an application for setting aside the sale. Order 21, Rule 90, Civil P.C., enacts that:
Where any immoveable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of the assets, or whose interest are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.
5. The applicant can only succeed if he can show that he comes within the definition of "any parson entitled to share in a rateable distribution of assets." Section 73, Civil P.C., 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 the 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.
6. The important words for the purpose of the disposal of the case before us are "before the receipt of such assets." Ale Nabi, before he could succeed, had to establish that he had made an application for rateable distribution before the receipt of the assets by the Court For the purpose of disposing of the point in issue, we do not propose to enter into the question as to whether or not the Court would be deemed to have received the assets as soon as the amount is tendered by the auction purchaser. We will assume that the assets were received when the money was actually paid by the auction-purchaser in the Imperial Bank. "We have already pointed out that according to the evidence produced in the case the amount was tendered on 11th September 1931. Ale Nabi had to establish that his application for rateable distribution had been made to the Court executing the decree of Chiranji Lal before the sale consideration had been paid by the auction-purchaser in the Imperial Bank. The burden of proving this point was on him. In our opinion he failed to establish this point. On the evidence which has been produced in the case the learned Judge of the lower appellate Court was not in a position to come to a definite conclusion as to whether the payment by the auction purchaser had been made before or after the application made by Ale Nabi for rateable distribution. Somehow or other the learned Judge of the Court below seems to have thought that very likely the application for rateable distribution was made within a few minutes after the assets had been realized by the Court. He however treated this point as a technical one and expressed an opinion that in these circumstances the auction-purchaser should not be allowed to take advantage of a technical plea. In our opinion this conclusion is not right. The auction-purchaser is fully entitled to take advantage of any legal point which he can urge in his favour and which would show that the application by Ale Nabi was not maintainable. It is his legal right and he cannot be deprived from taking advantage of that position merely because the point, relied upon by him is said to be technical.
7. The position is quite clear. The appellant had paid in the purchase money on 11th September. If Ali Nabi made an application after the amount had been paid in the Imperial Bank he could not possibly ask the Court to let him have rateable distribution, and if he could not apply for rateable distribution it follows that he could not make an application for setting aside the sale under the provisions of Order 21, Rule 90, Civil P.C. It may be pointed out that the first Court held that Ale Nabi was not competent to make an application for rateable distribution under Section 73, Civil P.C. That order, we may point out, was final and was not appealable. The learned Judge of the lower appellate Court therefore acted without any jurisdiction in setting aside that order. The provisions of Section 73, Clause (2) are clear. It is enacted that:
Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.
8. Thus, it will be seen that, if the order of the first Court was wrong, Ale Nabi had his remedy by instituting a suit against other decree-holders for getting a share in the assets. There could be no appeal under the law against the order passed by the first Court holding that Ale Nabi was not entitled to rateable distribution. We are therefore of opinion that it must be held that Ale Nabi's application was not one which could be maintained, having regard to the provisions of Section 73 and Order 21, Rule 90, Civil P.C. He had not applied for rateable distribution before the assets had been received by the Court. In any case the order passed by the first Court on this question was final, and the learned Judge of the lower appellate Court had no jurisdiction to interfere with that order. It must therefore be held that the order passed by the Court below remanding the case is unjust and without jurisdiction. For the above reasons, we allow this revision, set aside the order passed by the lower appellate Court and restore that of the first Court. The appellant will get his costs of this Court from Ale Nabi.