JUDGMENT Balagangadharan Nair, J. 1. Petitioners in C. R. P. Nos. 1425 and 1426 are respectively the decree-holders in O. S. Nos. 19 of 1968 and 84 of 1971 and the second respondent in both the revisions is the decree-holder in O. S. No. 63 of 1971, all being decrees for money of the Subordinate Judge Court, Trichur. The first respondent in the revisions is the common judgment-debtor in the three decrees. In 1971 the second respondent had attached before judgment, certain amounts due to the first respondent from the Collector, Dharmapuri in Tamil Nadu. Subsequently in execution of their decrees, the petitioners also placed attachments on the same amounts. At the instance of the petitioner in revision 1426, the court wrote for the amounts attached. After protracted correspondence, the garnishee, the Collector, Dharmapuri, sent three drafts on the State Bank of India, Trichur for an aggregate amount of Rs. 21,535.23. The drafts were received in the court on 25th April 1974 and on 27th May 1974, the petitioners made separate applications for the issue of cheques for the amounts due to them. On 3rd June 1974 the court sent the three drafts to the District Treasury, Trichur for encashment and adjustment in the C.C.D. account of the court. This was effected by the Treasury on 19th June 1974. In the meantime, on 28th March 1974, O.S. No. 63 of 1971 was decreed and on 14th June 1974, the second respondent applied for execution of the decree along with an application for rateable distribution of the amounts covered by the drafts. The petitioners resisted the application contending that the assets represented by the drafts were received by the court on 25th April 1974 and that as the second respondent had applied only on 14th June 1974, subsequent to the receipt of assets he was disentitled to rateable distribution. By the order under revision, the court overruled this objection, holding that the assets could be deemed to have been received only, on 19th June 1974, when the amounts covered by the drafts were adjusted in the C.C.D. account and that the second respondent application dated 14th June 1974 was before the receipt of assets and therefore admissible. By the order under revision, the court overruled this objection, holding that the assets could be deemed to have been received only, on 19th June 1974, when the amounts covered by the drafts were adjusted in the C.C.D. account and that the second respondent application dated 14th June 1974 was before the receipt of assets and therefore admissible. The revisions which are directed against this order have come before us on a reference made by a learned Judge, who felt that the question involved in them is fairly important to be considered by a Bench. 2. The short point in the revisions is whether the receipt of the drafts by the Subordinate Court on 25th April 1974 amounted to "the receipt of assets" within section 73, Code of Civil Procedure, so as to deny relief to the second respondent who made his application only on 14th June 1974. Before going into the cases cited before us, it is better to consider how the matter stands under the relevant provisions of the Code. Now between Order 21, rules 2 and 72 (2) it is obvious that except where a decree-holder purchases the judgment-debtor property at a court sale with permission and with, the incidental right of set off or where he receives satisfaction by some adjustment out of court, a decree for money has to be satisfied by payment of money. Section 73 itself applies only to decrees for payment of money and when it directs that the assets, after deducting the costs of realization, shall be rateably distributed� it obviously employs the term assets in the sense of money, as it is not in the scheme of the Code, for courts to distribute anything other than money towards decree for money. The expression after deducting the costs of realization also points to this inference, as costs can be deducted from money alone. If that is the import of the expression assets� in the latter part of section 73 (1), it must, in the absence of a contrary intention, mean the same thing in the earlier part where the phrases where assets are held by a court� and before the receipt of such assets� occur. As the court only pays out money to holders of decree for money, the rateable distribution can relate to money alone. As the court only pays out money to holders of decree for money, the rateable distribution can relate to money alone. Should there be any payment by way of rateable distribution to a person who has no right to receive it, the person rightfully entitled, is empowered by section 73 (2) to sue such person to compel him to refund the assets. This sub-section also uses the term assets� and there is no reason to hold that it is in any sense different from sub-section (1), a conclusion which is emphasised by the word paid� and more so by the word refund�. On the language and scheme of the section we must hold that the term assets in section 73 means money. 3. Passing to case law, Deva Dutta v. Mitter A.I.R. 939 Cal. 530, which is the earliest decision cited before us, was concerned with the meaning of the expression assets realized in the course of execution by sale or otherwise� in section 53, Presidency Towns Insolvency Act. This expression had been used in section 295, Civil Procedure Code 1882, which corresponds to section 73 of the present Code. After observing that the courts had invariably limited the meaning of the word assets� in section 295 to money or cash which is capable of immediate distribution among the decree-holders. Mc Nair, J. held with respect to section 73 that : "I have no doubt that the words assets held by a court must mean money held by a court for it is only money and not goods which can be the subject of rateable distribution."� 4. In Jogesh Prasad v. Lachmi Narayan 45 Calcutta W.N. 674 the expression assets held by the Court� in section 73 fell to be considered under the following facts: In execution of a decree in the Subordinate Judge Court the first respondent attached an amount which was lying with the Official Receiver, who had sold the assets of the judgment-debtor during an infructuous insolvency proceeding in the District Court. The District Judge issued a cheque, which was forwarded by the Official Receiver to the Subordinate Judge, who received it on May 23,1940. The same day the first respondent prayed for endorsement of the cheque in his favour and this was done by the court. The District Judge issued a cheque, which was forwarded by the Official Receiver to the Subordinate Judge, who received it on May 23,1940. The same day the first respondent prayed for endorsement of the cheque in his favour and this was done by the court. On May 23, 1940, after the receipt of the cheque, the petitioners who held decrees against the same judgment-debtor presented applications for execution and praying for rateable distribution of the amount which had been attached by the first respondent. The application having been dismissed they preferred revisions before the High Court and the question arose whether by the receipt of the cheque the Subordinate Judge could be said to have received and held assets which were distributable under section 73. In the course of the judgment Mukherjea, J. observed: 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 case either under the present section 73 of the Civil Procedure Code or under section 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 upon which the court can operate under that section must necessarily be money also. The policy underlying this section seems to me to be that when a creditor had been diligent enough in realising assets for payment of his debts, the law would recognise and reward his diligence. But so long as the assets have not been realised, the other creditors are entitled to come in and participate in the distribution of the same. Nothing short of actual realisation of the money can give rise to any rights of priority. If, therefore, the assets are brought before the court in such a shape that the court can forthwith make payment in favour of the creditor, through whose efforts they were so brought, no claim for distribution by other creditors could be entertained after the assets are so received.� With respect we agree with this statement of the law. If, therefore, the assets are brought before the court in such a shape that the court can forthwith make payment in favour of the creditor, through whose efforts they were so brought, no claim for distribution by other creditors could be entertained after the assets are so received.� With respect we agree with this statement of the law. The conclusion that receipt of the cheque was treated as receipt and holding of assets in that case cannot be extended beyond its facts or held to lay down any general principle for, the learned Judge himself observed that the facts in that case were some what different, that the only form of payment which the decree-holders desired was that the cheque should be endorsed over to them, that the Subordinate Judge was, therefore, quite competent to pay over the very moment that he received the cheque on the 23rd of May, 1940� and that it is not necessary for us to express any opinion on the general proposition as to whether in all circumstances a cheque would amount to an asset within the meaning of section 73 of the Code.� 5. That the situation in that case was peculiar is also obvious from, In re Frank Morton Fisk A.I.R, 1956 Calcutta 656, where Bachawat, J. after holding that (page 658): "Assets are realised in the course of execution if they are reduced into possession in a form which renders them available for immediate satisfaction of the decree which is being executed� and that "In case of execution of a decree for money nothing short of receipt of the money or the equivalent of money can amount to realisation of assees.� Within the meaning of section 53 (1), Presidency Towns Insolvency Act went on to point out, "Where a cheque is sent by the garnishee and the court accepts the cheque with a view to endorse and hand it over to the judgment creditor it is possible to say on the analogy of Jogesh Prasad v. Lachmi narayan, 45 Cat. W.N. 674 that the remittance and acceptance of a cheque amounts to realisation of assets."� 6. What happened in that case was that the executing court at first returned a cheque sent by the garnishee, as the amount of the cheque was in excess of the amount then due to the decree-holder. W.N. 674 that the remittance and acceptance of a cheque amounts to realisation of assets."� 6. What happened in that case was that the executing court at first returned a cheque sent by the garnishee, as the amount of the cheque was in excess of the amount then due to the decree-holder. Pursuant to the court direction the garnishee then sent a cheque for the correct amount and the amount was withdrawn by the decree-holder. In between the return of the first cheque and the receipt of the second cheque, the judgment-debtor was adjudicated insolvent by the High Court. The Official Assignee thereupon took out a motion from the High Court for directing the decree-holder to pay the amount withdrawn by him from the executing court. The question arose whether the decree-holder was entitled to the money on the ground that it represented assets realised in the course of the execution before the date of adjudication. After making the observations extracted earlier, the learned Judge held that the assets were not realised in the course of the execution before the date of the adjudication and that the decree-holder was therefore bound to pay the sum to the Official Assignee. From the facts it is obvious that the decision does not help either side, as the cheque that was accepted by the court was received after the order of adjudication and it cannot therefore prevail against the Official Assignee. 7. In Maddu Venkata Subbaiah v. Alane Adinarayana A.IR. 1954 Andhra 44, two National Savings Certificates standing in the name of the judgment-debtor were attached and cashed in execution of the petitioner decree. After the certificates were received in court but before they were encashed the respondents also attached them. The executing court held that the respondents were entitled to rateable distribution. In the revision taken by the petitioner challenging the order, the High Court held that the expression assets in section 73 means only money, rejecting the petitioner contention that the assets were received when the certificates reached the court and that the respondents who came in only later had no right to rateable distribution. The learned Judge agreed with the statement of law in A.I.R. 1939 Calcutta 530 and 45 Calcutta W.N. 674. 8. The learned Judge agreed with the statement of law in A.I.R. 1939 Calcutta 530 and 45 Calcutta W.N. 674. 8. This decision and A.I.R. 1939 Calcutta 530 were followed by the Andhra Pradesh High Court in Manora Bai v. Sultan Bakath Begum A.I.R. 1968 A.P. 113, where a learned Judge held that although a cheque, sent by the garnishee for the amount attached by petitioner and three other decree-holders, was received in court on 24th July 1962, the first respondent another decree-holder who applied only on 26th July 1962 was entitled to rateable distribution, as the date of receipt of assets was not 24th July 1962, but 31st July 1962, when the cheque was cashed. 9. In Rafic Mohammed v. Mangilal A.I.R. 1968 Rajasthan 3, pursuant to an attachment taken out by the petitioner, the garnishee sent a cheque which was received in court before 25th May 1965 and it was credited to the account of the court on 31st May 1965. After the receipt of the cheque but before the crediting of the amount, the respondent, another decree-holder made an application for rateable distribution. The petitioner contended that he was entitled to the whole amount on the ground that assets were received by the receipt of the cheque and that the respondent who came in only after the receipt of the cheque could not claim rateable distribution. After referring to 45 Cal. W.N. 674 on which reliance was placed by the petitioner and A.I.R. 1956 Calcutta 656, the court observed that: "..it is only when the decree-holder applies for endorsement of the cheque in his favour and is entitled to the whole of the amount that it can be said that the receipt of the cheque amounts to the receipt of assets within the meaning of section 73."� (page 4). The learned Judge then proceeded to point out that the petitioner did not become entitled to receive the whole of the amount of the cheque in execution of the decree (the total decree amount was more than the amount of the cheque) because he did not apply for endorsement of the cheque in his favour and that he was therefore entitled only to rateable distribution along with the respondent. 10. In Narayanan Krishnan v. Krishnan Kochan XX. 10. In Narayanan Krishnan v. Krishnan Kochan XX. T.L.J. 632, the only other case on this aspect that was cited before us, the amount was in the custody of the Principal Munsiff Court and the petitioner who held a decree of the Additional Munsiff Court and had attached it," applied to have the amount brought to the latter court. After an initial mistake, the Additional Munsiff sent a voucher for the correct amount on 32nd Edavam 1104 and he received a cheque for that amount from the Principal Munsiff on 1st Mithunam 1104. In the meanwhile on 31st Edavam 1104 the decree-holder in O.S. 48 of 1104 of the Principal Munsiff Court obtained an attachment of the same amount. The petitioner claimed to be entitled to the entire amount but this claim was rejected by the court in the view that the transfer to the credit of the petitioner decree should be deemed to have been made only when the correct voucher was sent on 32nd Edavam 1104 and so the decree-holder in O.S. 48 of 1104 who applied on 31st Edavam, 1104 was held entitled to rateable distribution. In the revision filed by the petitioner the High Court held that the assets had to be actually received in court and only those who make application, after that would be refused rateable distribution, that the order requisitioning transfer of the amount by the Additional Munsiff could not constitute receipt of the amount and that till the amount was actually transferred to the Additional Court, it continued in the custody of the Principal Court. The Court proceeded to hold that it is only when the cheque for the amount was actually received by the Additional Court, that the Court could be considered to have received it and that accordingly the petitioner was not entitled to the entire amount. 11. That covers the cases that were brought to our notice as bearing upon the expressions assets are held by a Court� and before the receipt of assets� in section 73. It is now necessary to note the exact scope of the petitioners Contention. Mr. 11. That covers the cases that were brought to our notice as bearing upon the expressions assets are held by a Court� and before the receipt of assets� in section 73. It is now necessary to note the exact scope of the petitioners Contention. Mr. Viswanatha Iyer, for the petitioners did not dispute that the ultimate distribution by the court must be money but he contended that the receipt of assets� can take the form of cheques and in any case drafts like those involved here which were sent by a District Collector, representing a Government and drawn on the State Bank of India, an institution of undoubted solvency should be equated with money. He maintained that even if the term assets� in section 73 means money, cheques and drafts are as good as legal tender and when accepted by the drawee or addressee constitute receipt of assets within the section. In support of this contention he relied upon a few decisions to which it is now necessary to refer. In Commissioner of Income-tax v. Ogale Glass Works Ltd. (1954) 25 I.T.R. 529 , the question for decision before the Supreme Court was whether the cheques sent by the Government of India from Delhi to the respondent-Company at Aundh, an Indian State but drawn on the Reserve Bank of India, Bombay constituted income received in British India or in that Indian State. The Supreme Court held that it was the former and in the course of the discussion their Lordships held that a sum of money may be received an more ways than one, by the transfer of coins or currency notes or a negotiable instrument which represents and produces cash and is treated as such by businessmen. It was also held that in the circumstances of the case, the position was that in one view of the matter, there was an implied agreement under which the cheques were accepted unconditionally as payment and on another view, even if the cheques were taken conditionally, the cheques not having been dishonoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in law the dates of payments were the dates of the delivery of the cheques. To the same effect are the observations in Kirioskar Bros. Ltd. v. Commissioner of Income-tax A.I.R. 1952 Bombay 306, where the relevant facts were identical. To the same effect are the observations in Kirioskar Bros. Ltd. v. Commissioner of Income-tax A.I.R. 1952 Bombay 306, where the relevant facts were identical. Counsel also relied upon Subramanyam v. Venkataratnam A.I.R. 1956 Andhra 105, where it was held that a cheque issued by the debtor and accepted by the creditor is sufficient to save limitation within section 20, Limitation Act, 1908. He also placed reliance upon Mohideen Bi v. Khatoon Bi A.I.R. 1966 Madras 435, where the highest bidder at a sale held by the Commissioners appointed by the court, deposited part of the amount in cash and issued a cheque for the balance, which was accepted by the Commissioners after satisfying themselves about his solvency. Following A.I.R. 1952 Bombay 306 and other decisions the High Court held that the cheque was as good a payment as cash and there was nothing irregular in accepting it by the auctioneers. 12. We find it unable to accept the contention of the petitioners on this point. Neither cheque nor draft is legal tender, though by contract either express or implied a creditor might agree to accept it as conditional or unconditional payment of the dues owing by his debtor. It is no doubt a convenient method of payment and that accounts for its prevalence and popularity among businessmen. Indeed the observations of Chagla, C.J. in A.I.R. 1952 Bombay 306, 308. "It is also well settled in commercial practice, as I shall presently point out, that a cheque is looked upon as a payment if a creditor accepts a cheque in place of the country currency; if he accepts the cheque, then he is paid, although the payment may not be an unconditional discharge. "It is also well settled in commercial practice, as I shall presently point out, that a cheque is looked upon as a payment if a creditor accepts a cheque in place of the country currency; if he accepts the cheque, then he is paid, although the payment may not be an unconditional discharge. But the only condition is that, if the cheque is not cashed, then the liability of the debtor will continue; but if the cheque is cashed, then the payment is not as of the date when the cheque is cashed but it is of the date when the cheque was given to the creditor.� and the observations of Lord Lindlee in Gresham Life Assurance Society v. Bishop 1902 A.C. 287, that "My Lords, I agree with the Court of Appeal that a sum of money may be received in more ways than one e.g. by the transfer of a coin or a negotiable instrument or other document which represents and produces coin and is treated as such by businessmen."� which were adopted by the Supreme Court in (1954) XXV I.T.R. 529, show that the payment by cheque and by draft is essentially one of commercial practice. It is not possible to apply or extend the same practice when a garnishee as in this case, sends drafts to a Court. Although the Civil Procedure Code provides a special machinery by Order 21, rules 46-A to 46-G for proceeding against the garnishee, he is by no means a debtor of the Court. What he sends to the Court by draft represents the judgment-debtor money and the Court duty is to collect the amount and keep it in its account so that the decree-holder can apply for payment out. Until such payment out or the appropriation of the amount to the decree-holder or to the creditors entitled to rateable distribution, the amount continues to belong to the judgment-debtor. The petitioners contention, if valid would mean, that from the date of receipt of the draft in court, interest would cease to run against the judgment- debtor, if the draft is honoured, however long it might be, after such receipt. The petitioners contention, if valid would mean, that from the date of receipt of the draft in court, interest would cease to run against the judgment- debtor, if the draft is honoured, however long it might be, after such receipt. A draft sent by a garnishee is in no way different from a draft sent by a judgment-debtor and a judgment-debtor, will not escape liability for interest, subsequent to the receipt of the draft by court, on the theory that in commercial practice, the encashment would relate to the date of receipt of the draft. We have already examined the material terms of section 73 and we do not think it possible to fit in this commercial practice canvassed by counsel for the petitioners into the scheme of the section. While we agree with the statement of the law in 45 Cal. W.N. 674, the fact that the receipt of the cheque was treated as receipt of assets in that case cannot be held to lay down any general principle but must be limited to the facts of the case. The upshot of the case is also distinguishable from the present, as the petitioners did not and could not have prayed for an endorsement of the drafts. We follow A.I.R. 1939 Cal. 530, A.I.R. 1954 Andhra 44 and A I.R. 1968 A.P. 113. The other cases are clearly distinguishable and inapplicable. We hold that the assets were received only on 19th June 1974, when the drafts were adjusted in the C.C. D. account of the Court. As a second respondent had made his application before that date, he has been rightly allowed to share in the rateable distribution. 13. We confirm the order of the court below and dismiss the revisions but in the circumstances without costs.