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Varjivandas Jamnadas and ors. Vs. Maganlal Chhabildas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Reported inAIR1937Bom382
AppellantVarjivandas Jamnadas and ors.
RespondentMaganlal Chhabildas
Excerpt:
- - it was argued on behalf of bai kamla that the attachment was bad in law, because the moneys due under the policies were not payable before the death of the assured, and the assured was not dead at the date of the attachment, that in any event there is no attachment now subsisting, as it was levied in september 1930, and no alias warrant had been obtained after the expiry of a year as provided by rule 320. the question that arises is whether an attachment of property is always necessary for the appointment of a receiver in execution.b.j. wadia, j.1. this is a chamber summons taken out by the plaintiffs for the appointment of a receiver in execution of two policies issued by the oriental government security life assurance co. ltd., with power to him to recover the amount due under the policies and to give the company a discharge for the same.2. a decree was passed against the defendant on 5th september 1930 in favour of the plaintiffs for a sum of rs. 3,238-15-0 and interest thereon at 6 per cent, per annum till payment. in execution 'of the decree the plaintiffs attached the right, title and interest of the defendant in three policies of this company of rs. 1,000 each. the defendant was the assured in respect of one of them, and with regard to the two others the defendant was the assignee of one maneklal chhaganlal......
Judgment:

B.J. Wadia, J.

1. This is a Chamber Summons taken out by the plaintiffs for the appointment of a receiver in execution of two policies issued by the Oriental Government Security Life Assurance Co. Ltd., with power to him to recover the amount due under the policies and to give the company a discharge for the same.

2. A decree was passed against the defendant on 5th September 1930 in favour of the plaintiffs for a sum of Rs. 3,238-15-0 and interest thereon at 6 per cent, per annum till payment. In execution 'of the decree the plaintiffs attached the right, title and interest of the defendant in three policies of this company of Rs. 1,000 each. The defendant was the assured in respect of one of them, and with regard to the two others the defendant was the assignee of one Maneklal Chhaganlal. By an assignment dated 16th February 1932, the defendant purported to assign in favour of his wife, Bai Kamla, for a sum of Rs. 750 his right, title and interest in the two policies assigned to him by Maneklal Chhaganlal. The plaintiffs do not admit that the alleged assignment to Bai Kamla was for consideration. It is, however, in respect of these two policies that they have applied for a receiver in execution.

3. It has been held in Vishvanath v. Mulraj : (1911)13BOMLR590 that the amount due under a policy is a debt within the meaning of Section 3, T.P. Act. The term 'debt' includes a sum of money due by one person to another, which is actually payable at the time, or which is due though not actually payable then. The amount due under a policy is attachable under Section 60 of the Code, though it becomes payable only on the death of the assured. The assured, viz. Maneklal Chhaganlal, died on 7th March 1936, and the amount due under the two policies became payable on the death. It is provided by Rule 314 of the High Court Rules that an application for the execution of a decree by the appointment of a receiver to realize or otherwise deal with property under attachment shall be made to the Judge in Chambers. It was argued on behalf of Bai Kamla that the attachment was bad in law, because the moneys due under the policies were not payable before the death of the assured, and the assured was not dead at the date of the attachment, that in any event there is no attachment now subsisting, as it was levied in September 1930, and no alias warrant had been obtained after the expiry of a year as provided by Rule 320. The question that arises is whether an attachment of property is always necessary for the appointment of a Receiver in execution. Rule 314 deals with applications for the appointment of a Receiver in execution of a decree of a property under attachment, but I do not, think it follows that no such Receiver can be appointed unless the property is under attachment. Under Section 51 of the Code, a decree may be executed by a sale without attachment of the property. It has been held by the Privy Council in Rajindra Narain Singh v. Sundar Blbi. that a receiver in execution can be appointed of 'a right to future maintenance' within the meaning of Section 60 (1)(n) of the Code, though it cannot be attached and sold.

4. Counsel for Bai Kamla further contended that the procedure by way of Chamber Summons was wrong and that the plaintiffs should have taken out a garnishee notice under Rule 329, after which he could have applied to the Court under the provisions of Rule 332. It has however been held in Jetha Devji & Go. v. Durgadutt A.I.R. 1927 Bom. 365 that a garnishee notice cannot issue unless and until the amount has become payable. All that the decree-holder can, therefore, do is to attach the debt payable to the assured which has been done. Counsel for Bai Kamla relied on G.D. John v. Sambamurthy Aiyar : AIR1929Mad347 but in that case the attachment of the amount due under the policy was never questioned. Even if it be held that the attachment is not subsisting, it is not, in my opinion, a condition precedent that the attachment should be subsisting for the appointment of a Receiver in execution. If a decree-holder makes out proper grounds for equitable or indirect execution, namely by the appointment of a Receiver such a Receiver can be appointed, for there is nothing in the Code or the rules which prohibits such an appointment. The Receiver takes the place of the debtor and acts as an officer subject to the direotions of the execution Court in collecting and disbursing the debtor's income in accordance with those directions towards the discharge of the claim of the decree-holder: see Rajindra Narain Singh v. Sundar Blbi. .

Order.

5. Chamber Summons absolute. Court Receiver appointed Receiver in execution of the two policies mentioned in the summons. Costs costs in the execution. Counsel certified.


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