Mullick, J.This application has been made against an order, dated the 6th February 1923, made by the Subordinate Judge of Chapra in ft case u/s 73, Civil Procedure Code. Decisions made under this Section with reference to the claims of rival decree-holders are not ordinarily revisable u/s 115. Civil Procedure Code, and the only reason that I can see for admitting the present application is that the learned Judges judgment is so hopelessly inadequate that our interference is called for u/s 17 of the Government of India Act. The learned Judge observes that argument was heard at great length, but his decision occupies exactly 7 lines and contains no particulars as to the claims made by the contending parties, the evidence given, the arguments advanced and the reasons upon which he bases his order-The matter was sufficiently complicated to require considerable argument before us and I certainly think that the learned Subordinate Judge failed in his duty in omitting to write a more considered and careful judgment.

2. Now the facts appear to be these. On the 28th July 1917 one Bishun Mohon got a decree against one Ram Gharib for Rs. (sic) in the Court of the Subordinate Judge of Gorakhpur. On the same date on Hira Lal got a decree for Rs. 4,000 against the same judgment-debtor in the same Court. A third suit was brought by the Liquidator of the Kayesth Trading and Banking Corporation in liquidation in the Court of the Subordinate Judge of Gorakhpur against the same defendant for a sum of Rs. 76,000 on the allegation that Ram Gharib was the Manager of the Kayesth Trading and Banking Corporation and that he had misappropriated the pm in question and spent it in the purchase of properties for the benefit of himself and his co-sharers. Accordingly, the Liquidator impleaded in his suit not only Ram Gharib but also the members of his joint family. While that suit was pending the Liquidator brought a suit against the Manager under the Indian Companies Act in the High Court of Allahabad and in consequence of some proceedings by way of compromise he withdrew the suit in the Court of the Subordinate Judge at Gorakhpur and obtained on the 31st July 1922 a consent decree in the High Court for the sum of Rs. 76,000. At the sama time, in accordance with the compromise, the Manager and his co-sharers executed a security-bond in favour of the Liquidator, the relevant portion of which ran in the following terms: "And it is also stipulated therein that we the declarants should mortgage and hypothecate our properties described below by way of security for payment of the said decretal amount. Accordingly, acting under the said settlement, we the declarants mortgaged the properties described below by way of security for the said decretal amount to Munshi Narayan Prasad Asthana, Advocate of the Allahabad High Court and the Official Liquidator of the Bank, and we do declare that the said Official Liquidator be at liberty to realise the said sum of Rs. 76,000 (seventy six thousand) by taking out execution of the decree against, me the declarant No. 1 and to file a petition for rateable distribution of share in the properties of me the declarant No. 1 which hare been Attached or to have them attached by taking out execution of the said decree; if (full) decretal amount be not realised in this way then the Official Liquidator may recover the balance of the money due under the decree not realised in this by sale of the properties given below."

3. All these three decrees were thereafter sent for execution to the Court of the Second Subordinate Judge of Chapra. There Bishun Mohan applied for execution on the 11th September 1922 and on the 16th September 1922 the Court caused to be Attached Ram Gharibs share in certain properties. Hira Lal applied for execution on the 14th December 1922 and on the 52nd January 1923 he attached some of Ram Gharibs properties. The Liquidators application for execution is dated the 10th January 1923 and on the 12th January 1923 he made an application u/s 73, Civil Procedure Code, for rateable distribution along with Bishun Mohan. Bishun Mohon objected and the Subordinate Judge has decided against him. The present application for revision has been made against that order.

4. Now, it appears that after Hira Lal attached Ram Gharibs properties in execution of his decree the Liquidator stepped in and produced the security bond which had been executed on the 22nd September by Ram Gharib and his co-sharers and asked that the properties covered by that security-bond which had been attached and were about to be sold should be sold subject to his mortgage Hen. The Court allowed the prayer, but in fact none of the properties covered by the security-bond were sold and some other properties belonging to Ram Gharib were sold in that execution.

5. It is contended that as the Liquidator is a mortgagee he cannot nave the benefit of Section 73. It is urged that proviso (b) of Clause (1) of Section 73 compels the mortgagee to give up his encumbrance and to sell the property free of his mortgage charge if he should desire to share in the proceeds of the sale; if he does no to this, it is not open to him to ask for rateable distribution even though he may be the holder of a money-decree against the judgment-debtor apart from the mortgage. In my opinion the contention is not well founded.

6. The proviso applies only to a mortgagee whose charge is valid against the executing decree-holder. In the present case the Liquidators charge having come into existence after Bishun Mohons attachment the sale could not have been in any way affected by the encumbrance, and if the Liquidator is debarred from applying for rateable distribution in respect of his decree for Rs. 76,000 there will be no property left against which he can enforce either that decree or his mortgage charge.

7. Whether the security-bond effects a mortgage on Ram Gharibs share in the sense that it enables the Liquidator to sue Ram Gharib and his co-sharers for the realisation of the whole of the Rs. 76,000 is open to some doubt; the bond itself stipulates that the Liquidator shall proceed against Ram Gharibs properties in execution of his money-decree and that it is only for the balance that the mortgage shall be enforced against the shares of the remaining co-shares of Ram Gharib. That point, however, is not really material to the decision of the present application.

8. The result is, that the application is dismissed with costs; hearing fee two mohurs.

Bucknill, J.

9. I agree.