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Mahasukh Jhaverdas Vs. Valibhai Fatubhai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 339 of 1925
Judge
Reported inAIR1928Bom177; (1928)30BOMLR455
AppellantMahasukh Jhaverdas
RespondentValibhai Fatubhai
Excerpt:
provincial insolvency act (v of 1920), section 52-insolvent- adjudication-execution proceedings against insolvent's property to be stayed.;where a judgment-debtor applies to be adjudicated insolvent after attachment but before sale of his property in execution of a decree against him, the attaching court is bound to adjourn the sale and direct the property to be delivered to the receiver. it is not at liberty to allow the sale to proceed and to pay over the sale proceeds to the receiver. - .....the attaching court was bound under section 52 of the provincial insolvency act to adjourn the sale and direct the property to be delivered to the receiver, or, whether it was right in ordering the sale to proceed, proposing to pay over the sale proceeds only to the receiver. that question depends upon whether the words 'in the possession of the court' used in section 52 of the provincial insolvency act include the process of attachment by the court. we are of opinion that the effect of attachment of an immoveable property under section 64 of the code of civil procedure is that the property attached is kept in custodia legis during the period of attachment. whether physical possession does or does not exist, is immaterial. it follows that the court which attaches the property and.....
Judgment:

Madgavkar, J.

1. After attachment and before sale, the judgment-debtor applied to be adjudicated insolvent. The question in this case is whether the attaching Court was bound under Section 52 of the Provincial Insolvency Act to adjourn the sale and direct the property to be delivered to the receiver, or, whether it was right in ordering the sale to proceed, proposing to pay over the sale proceeds only to the receiver. That question depends upon whether the words 'in the possession of the Court' used in Section 52 of the Provincial Insolvency Act include the process of attachment by the Court. We are of opinion that the effect of attachment of an immoveable property under Section 64 of the Code of Civil Procedure is that the property attached is kept in custodia legis during the period of attachment. Whether physical possession does or does not exist, is immaterial. It follows that the Court which attaches the property and purports to sell it is in possession within the meaning of Section 52 of the Provincial Insolvency Act, and must stop the proposed sale and direct the property to be delivered to the receiver.

2. We allow the application, and set aside the order of the lower Court.

3. The applicants will get their costs from the assets. The opponents to bear their own costs in both the Courts.


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