Judgment These two revision petitions arise out of two applications, R.E.A. Nos.1152 of 1951 and 1114 of 1951, two applications filed under section 73 of the Civil Procedure Code on the file of the Court of the Subordinate Judge, Salem, for rateable distribution. The facts found by the learned Subordinate Judge may be briefly stated. The petitioner in R.E.A.No.1152 of 1951 is the decree-holder in O.S.No. 110 of 1945 on the file of the Court of the Subordinate Judge, Salem. He obtained a decree against the sons and widow of one Srinivasa Ayyar. The respondents In that application are the decree-holders in O.S.No.17 of 1946 and O.S.No.27 of 1944 on the file of the same Court. The first respondent in R.E.A.No.1152 of 1951 filed O.S.No.17 of 1946 against Venkatarama Ayyar and Srinivasa Ayyar who were the erstwhile partners of the firm, and their sons and obtained a decree for Rs.6,250 against Venkatarama Ayyar and Srinivasa Ayyar personally and their sons from out or their family properties. The second respondent filed O.S.No.27 of 1944 and obtained a decree for Rs.6,138-12-0 as against the widow and sons of Srinivasa Ayyar. Srinivasa Ayyar before his death became an insolvent and his estate vested in the Official Receiver. His widow, fifth defendant in O.S.No.110 of 1945 was allotted the amounts now in dispute representing his estate. The decree-holder in O.S.No.110 of 1945 filed R.E.A.No.1152 of 1951 claiming the entire amount so allotted on the ground that his decree was obtained against Srinivasa Ayyar and his heirs personally, whereas the other decrees were against the firm. The decree-holder in O.S.No.27 of 1944 brought the properties of the deceased to sale and the sale proceeds were deposited to the credit of O.S.No.27 of 1944. That amount was attached by the decree-holder in O.S.No.17 of 1946. The decree-holder in O.S.No.110 of 1945 also attached the same. The decree-holder in O.S.No.27 of 1944 filed E.A.No.1114 of 1951 claiming rateable distribution out of the amounts deposited in Court. On these facts the learned Subordinate Judge held that the three decrees were, against the same judgment-debtor and on that finding dismissed E.A.No.1152 of 1951 and ordered E.A.No.114 of 1951. The decree-holder in O.S.No.110 of 1945 preferred the two revisions against the said orders. On these facts the learned Subordinate Judge held that the three decrees were, against the same judgment-debtor and on that finding dismissed E.A.No.1152 of 1951 and ordered E.A.No.114 of 1951. The decree-holder in O.S.No.110 of 1945 preferred the two revisions against the said orders. Learned counsel appearing for the petitioner raised before me two points:- (1) The learned Subordinate Judge was wrong in holding that the decrees in O.S.Nos.27 of 1944 and 17 of 1946 were against members of Srinivasa Ayyar’s family personally. He contended that on a true construction of the decrees it will be clear that the said decrees were really against the firm. (2) If the petitioner’s decree was against the legal representatives of Srinivasa Ayyar personally and if the other two decrees were against the firm, the decrees would not be against the “same judgment-debtor”, within the meaning of section 73 of the Civil Procedure Code. The first question turns upon the construction of the decrees. Except the certified copies of the decrees, no other relevant papers such as the pleadings are placed before me. The question therefore falls to be considered on the recitals in the decrees themselves. The decree in O.S.No.17 of 1946 shows five defendants. They are (1) Venkatarama Ayyar, (2) Srinivasa Ayyar, (3) Soundararajan, (4) Seshadri and (5) Minor Balakrishnan. Defendants 3 and 4 are the sons of the second defendant Srinivasa Ayyar, and the fifth defendant is the son of Venkatarama Ayyar, the first defendant. Pending the suit, the second defendant died. In the summary of the plaint given in the decree it is stated that defendants 1 and 2 were carrying on partnership trade under the name and style of "Paramathi N. Venkatarama Ayyar, L.N. Srinivasa Ayyar, Salem"; that defendants 3 and 4 were the undivided sons of the second defendant and that the fifth defendant was the undivided son of the first defendant. The claim Was for damages for breach of contract in respect of goods sold to the defendants. Though the liability was that of the firm, the plaintiffs did not implead the defendants 1 and 2 as partners of the firm, personally because the partnership business was closed and the plaintiffs intended to recover the amounts from the family assets of the partners. Though the liability was that of the firm, the plaintiffs did not implead the defendants 1 and 2 as partners of the firm, personally because the partnership business was closed and the plaintiffs intended to recover the amounts from the family assets of the partners. The defendants remained ex parte and the plaintiffs obtained a decree for recovery of the sum claimed against defendants 1 to 4 personally and defendants 1 to 5 from and out of the joint family properties. The decree is therefore clearly one against defendants 1 to 5 personally. I entirely agree with the learned Subordinate Judge that the decree cannot be construed to be one made against the firm. Coming to O.S.No.27 of 1944 it was a suit filed by the plaintiff therein for recovery of a sum of Rs.6,138-12-0 as damages for breach of contract from defendants 1 to 4 personally and from out of the joint family properties of defendants 1 and 5. The operative portion of the decree reads as follows: " This Court doth order and decree, that defendants 1 to 4 personally and defendants 1 and 5 from out of the joint family properties, do pay plaintiff a sum of Rs.6,138-12-0 as damages for breach of contract, with subsequent interest at the rate of 6¼ per cent. per annum from 30th June, 1943, till date of decree and thereafter at six per cent. per annum till date of payment subject to the condition mentioned in paragraph 2 below. 2. This Court doth further order and direct that the plaintiff do proceed, for realising the decree amount, in the first instance against defendants 1 to 4 and the properties of the 1st defendant and then against the shares of the joint family properties of the fifth defendant, if he is not able to realise the entire decree amount from defendants 1 to 4" It will be seen from the aforesaid recitals that no decree was made against the firm or the defendants as partners of a firm. The decree is a pure and simple personal decree against defendants 1 to 4 and against the shares of the joint family property of the fifth defendant. I therefore agree with the finding of the lower Court on the construction of the decree in O.S.No.27 of 1944 also. In this view no other question arises. The decree is a pure and simple personal decree against defendants 1 to 4 and against the shares of the joint family property of the fifth defendant. I therefore agree with the finding of the lower Court on the construction of the decree in O.S.No.27 of 1944 also. In this view no other question arises. But as the learned counsel argued at some length on the applicability of the provisions of section 73 to a case where one of the decrees is against the firm and the other against the partners personally, I shall proceed to express my view on the said question. The provision of law that governs the question of rateable distribution is section 73 of the Civil Procedure Code which reads: " . (1) 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 decree for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons."/p> The necessary condition for the application of the section is that the two decrees should have been passed against the " same judgment-debtor ". The applicability of the section therefore turns upon the connotation of the words " same judgment-debtor" in the section. The meaning of those words is sought to be ascertained by reference to other provisions of law. The relevant provisions may now be read. " Section 49, Indian Partnership Act: Where there are joint debts due from the firm and also-separate debts due from any partner, the property of the firm shall be applied in the first instance in payment of the debts of the firm, and, if there is any surplus, then the share of each partner shall be applied in payment of his separate debts or paid to him. The separate property of any partner shall be applied first in the payment of his separate debts, and the surplus (if any) in the payment of the debts of the firm“. ”Order 21, rule 49, Civil Procedure Code: Save as otherwise provided by this rule, property belonging; to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such. ”Order 21, rule 49, Civil Procedure Code: Save as otherwise provided by this rule, property belonging; to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such. The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profits with payment of the amount due under the decree and may by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partners, or as the circumstances of the case may require.“ Order 21, rule 50: Where a decree has been passed against a firm, execution may be granted (a) against any property of the partnership; (b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear. The said provisions were subject to judicial scrutiny which lead to divergent: views on the subject. Before I express my view on the question raised, it will be convenient and profitable to consider some of these cases. In Balmer Lawrie &38; Co. v. Jadhunath Banerjee1, a Divisional Bench of the Calcutta High Court explained the meaning of the words ‘the same judgment-debtor’ in section 73. There the petitioner obtained a decree for money against D.Mukherjee &38; Co., whereas, the respondent obtained a decree for money against his judgment-debtor, Dasarathi Mukherjee. At the instance of the respondent decree-holder certain sums payable to Mukherjee by the Corporation of Calcutta were realised. The question was whether the petitioner who obtained a decree against Mukerjee &38; Co., was entitled to rateable distribution. At the instance of the respondent decree-holder certain sums payable to Mukherjee by the Corporation of Calcutta were realised. The question was whether the petitioner who obtained a decree against Mukerjee &38; Co., was entitled to rateable distribution. In negativing the claim, the learned Judges observed as follows at page 9: ”It is essential for the application of the section that the decrees should have been passed against the same judgment-debtor. This has been made clear beyond possibility of dispute by the introduction of the word “passed” which did not find a place in section 295 of the Code of 1882. But as. already stated the decree held by the opposite party, in execution of which the properties have been brought into Court, was passed against Dasarathi Mukerjee, while the decree held by the petitioner was obtained against the firm of which Dasarathi Mukerjee was a partner, and is not shown to be capable of execution against him individually. Consequently, the two decrees cannot be deemed to have been passed against the same judgment-debtor. “ The same view was expressed by the Divisional Bench of the Lahore High Court in Sadhu Ram v. Firm Dhanpat Rai2. There also the conflict was between a person who obtained a decree against a person in his individual capacity and another who obtained another decree against the same defendant as a partner of a firm. The learned Judges following the decision in Balmer Lawrie &38; Co. v. Jadhunath Banerjee 1, negatived the claim of the petitioner on the ground that a decree against a firm and a decree against a partner in his individual capacity are not decrees against the”same judgment-debtor“. In Kritanta Kumar v. Pullin Krishna 3, the facts were: The appellants obtained a decree for a large amount against a firm known as Ram. Krishna Bejoy Krishna Pal. The respondent obtained a decree against Pullin Behari Pal and Anil Krishna Pal and three other persons and put his decree into execution. The appellants applied for rateable distribution of the money which would be brought into Court in execution of the respondent’s decree. The learned Judges allowed the application for rateable distribution. In coming to that conclusion they applied the following principle laid down in Ex parte Handford 4. The appellants applied for rateable distribution of the money which would be brought into Court in execution of the respondent’s decree. The learned Judges allowed the application for rateable distribution. In coming to that conclusion they applied the following principle laid down in Ex parte Handford 4. ”It is settled law that the effect of the provisions with regard to suing partners in their firm name is merely to give a compendious mode of describing in the writ the partners who compose the firm and that the plaintiff who sues partners in the name of their firm in truth sues them individually, just as such as if he had set out all their names." Following the said principle they held when a suit is brought against a firm and judgment obtained against it, the action is really against the persons who constituted the firm and the judgment is really a judgment against the individuals. In that view they saw no difficulty in holding that the decrees were against the same judgment-debtors. It is true that this Judgment is in conflict with the earlier views expressed by the Calcutta High Court. But the learned Judges have not considered the effect of the principle embodied in section 49 of the Partnership Act and the combined effect of Order 21, rule 49 and section 73 of the Civil Procedure Code. The Bombay High Court in Pannaji Devi Chand v . Lakkaji Dolaji1, considered the applicability of section 73 to a case where one of the decrees was made against a partner under Order 30, rule 6, Civil Procedure Code and another made against him individually. At page 157 the learned Judges stated thus: " Now, applying these provisions to the facts of the present case, the petitioners impleaded the firm of Kapurji by its proprietor and Vahivatdar Sogaji and the summons was served on Sogaji as a partner. Sogaji appeared in the suit and defended it. Thereafter the decree was passed against the firm by its partner Sogaji. Now Order 21, rule 50, provides that where a decree has been passed against a firm execution may be granted against any property of the partnership, and against any person who has appeared in his own name under rule 6 or rule 7 of Order 30 or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner. In the present case Sogaji appeared in his own name under rule 6. The result therefore, was that, under the combined operation of Order 30, rule 6 and Order 21, rule 50, the decree was executable against the person of Sogaji. That being so, the capacity of Sogaji as a judgment-debtor in the petitioner’s darkhast would be the same as that of Sogaji as a judgment-debtor in the opponents’ darkhast, and the petitioners, therefore, would be entitled to rateable distribution." It will be seen from the aforesaid observations that the learned Judges accepted the principle that for the application of the provisions of section 73, Civil Procedure Code, the two decrees should have been made against the judgment-debtor in the same capacity ; but having regard to the provisions of Order 21, rule 50 and Order 30, rule 6, the learned Judges held that the two decrees were against the defendant in the same capacity. An exhaustive, and if I may say so, instructive discussion on the question raised is found in Pacific Bank v. Thakur Singh2. There the first decree was against the defendants’ partners and the second decree was against them in their individual capacity. The decree-holder against the firm applied for rateable distribution in regard to the fund representing the separate property of the defendants. He would be entitled to rateable distribution if the decrees were against the same judgment-debtor. The learned Judge after considering the relevant provisions cited before him expressed the following view in regard to the meaning of the words "same judgment-debtor" : " These words indicate not only an identity of the individual but also an identity of the interest or character or capacity of the individual. The individual may be the same but if he has different interests or characters or capacities in different decrees, then the decree is not against the same judgment-debtor." As the decrees were made against the defendants in different capacities, one as partners, and another as individuals, the learned Judge held that the decree-holder against the partners cannot apply for rateable distribution against the assets realised by the sale of the separate property of the defendants. I shall now proceed to state my view having regard to the aforesaid provisions and the case-law bearing on those provisions. The wording of section 73 is clear and unambiguous. I shall now proceed to state my view having regard to the aforesaid provisions and the case-law bearing on those provisions. The wording of section 73 is clear and unambiguous. Rateable distribution could be allowed only in a case where the decree is against the same judgment-debtor. The question, namely, whether .a decree against a firm and a decree against the partner of a firm in his individual capacity are against the same judgment-debtor can be decided only by posing and answering the question whether the said decrees are against the defendants in the same capacity; Section 49 of the Indian Partnership Act affords a clue. It is true that section 49 of the Partnership Act finds its place in Chapter 6 which regulates the procedure in the case of dissolution of a firm either voluntary or by operation of law or through the intervention of Court. The section in terms, therefore, cannot apply to resolve the conflict between decree-holders in execution. But the principles laid down in the section cannot be ignored. Section 49 clearly and expressly states that the property of the firm shall be applied in the first instance in payment of the debts of the firm and that the separate property of any partner shall be applied first in the payment of his separate debts. If there is a balance of assets after the discharge of the firm debts or separate debts as the case may be the debts of the other category can be paid. This section therefore recognises for a limited purpose that the two classes of debts are distinct and payable from different assets. The principle underlying the section is also applied in execution. Order 21, rule 49, lays down that the property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners of the firm as such. By reason of this provision a decree-holder who obtained a decree against a defendant personally cannot proceed against the assets of the firm of which that defendant is a partner. This section therefore also treats the firm and the members of the firm in their individual capacity as different persons. By reason of this provision a decree-holder who obtained a decree against a defendant personally cannot proceed against the assets of the firm of which that defendant is a partner. This section therefore also treats the firm and the members of the firm in their individual capacity as different persons. Order 21, rule 49 (2) prescribes the mode of execution in the case of a decree against a partner, whereas Order 21, rule 50, regulates the procedure in the case of a decree against a firm. Section 73, Civil Procedure Code, provides for the distribution of assets when the assets are realised in execution of one decree, and when other decree-holders against the same judgment-debtor put in their decrees in execution before the assets are realised. Both Order 21, rules 49 and 50 and section 73 deal with the mode of execution. It is therefore unreasonable to read section 73 independently without reference to Order 21, rule 49. They must be read together. By reason of Order 21, rule 49, when the judgment-debtor is a firm or the partners of a firm, the property of the firm cannot be proceeded against for a decree obtained against the partners in their individual capacity. This could only be because they are deemed to hold separate capacities. If they hold separate capacities, it is illogical to hold that in a converse case when a decree-holder against the firm proceeds to execute his decree against the separate assets of the partners of the firm, the partners and the individuals are holding the same capacity, as they hold separate capacity in either case. Order 21, rule 50(b) specifically enacts an exception in a case where the conditions laid down therein are complied with. I would therefore hold that a decree against a firm’s partners and a decree against the partners in their individual capacity are not decrees against “the same judgment-debtor”. This view is consistent with the decisions reported in Balmer Lawrie &38; Co. v. Jadunath Banerjee1, Sadhu Ram v. Firm Dhanpat Rai 2, and Pacific Bank v. Thakur Singh3. I respectfully agree with the views expressed therein. But as I hold, agreeing with the Court below that all the three decrees were against the same judgment-debtors, it follows that the respondents are entitled to rateable distribution. The Civil Revision Petitions therefore fail and are dismissed with costs in C.R.P.No.1168 of 1952. I respectfully agree with the views expressed therein. But as I hold, agreeing with the Court below that all the three decrees were against the same judgment-debtors, it follows that the respondents are entitled to rateable distribution. The Civil Revision Petitions therefore fail and are dismissed with costs in C.R.P.No.1168 of 1952. R.M. ----- Petitions dismissed.