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Sri Chand Vs. Murari Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All628; 16Ind.Cas.183
AppellantSri Chand
RespondentMurari Lal
Excerpt:
provincial insolvency act (iii of 1907), sections 16(2), 34 - assets realized in execution of decree', weaning of--attachment of surplus money lying to the credit of the insolvent judgment-debtor--execution of decree during pendency of insolvency proceeding--sale of immoveable property of insolvent judgment-debtor before adjudication of insolvency. - .....he attached certain immovable property of his judgment-debtor and got it put up to sale, and the sale proceeds were deposited in court in the month of january, 1912. we think he was entitled to the money so deposited, and the order of the court below to the contrary was wrong. the deposit was for the benefit of the decree-holder. it was not the property of the judgment-debtor which could vest in the court or in the official receiver under the provisions of section 16, clause (2) of the provincial insolvency act, and it also came within the definition of the assets realized in the course of execution within the meaning of section 34 of the same act. we think, however, that the order of the court below was right and the appeal should not be allowed in respect of another item of rs......
Judgment:

Muhammad Rafiq and Piggott, JJ.

1. In this case, the appellant, Sri Chand, held a decree against one Murari Lal. Proceedings to have this judgment-debtor declared insolvent were pending from the 21st of February, 1911, to the 1st of February, 1912. Sri Chand, as one of the creditors, had notice of these proceedings. While, however, they were going on, he took an opportunity to continue executing his decree, and we can find nothing in law to prevent him from doing so, up to the date when an order of adjudication was passed. He attached certain immovable property of his judgment-debtor and got it put up to sale, and the sale proceeds were deposited in court in the month of January, 1912. We think he was entitled to the money so deposited, and the order of the court below to the contrary was wrong. The deposit was for the benefit of the decree-holder. It was not the property of the judgment-debtor which could vest in the court or in the official receiver under the provisions of Section 16, Clause (2) of the Provincial Insolvency Act, and it also came within the definition of the assets realized in the course of execution within the meaning of Section 34 of the same Act. We think, however, that the order of the court below was right and the appeal should not be allowed in respect of another item of Rs. 1,139-12-3. This seems to have been the surplus proceeds of a sale of some other property of Murari Lal's in execution of some other decree. In the month of November, 1911, it was lying to the credit of Murari Lal in the court of the Subordinate Judge of Meerut. Sri Chand applied to the court executing his decree to attach this money for his benefit,' and obtained an order of attachment. But nothing further had been done before the order of adjudication against Murari Lal was passed. There had been no order under Rule 8 of Order XXI, Code of Civil Procedure, vesting the money so attached in the decree-holder. It was, therefore, the property of the insolvent on the date on which the order of adjudication was passed and so vested in the insolvency court and became divisible among the creditors. We are not prepared to hold that Section 34 of the Provincial Insolvency Act gives the appellant, Sri Chand, any special claim in respect of this money. It may have been, and no doubt was, realized in the course of the execution of the other decree, in the execution of which the sale took place; but it was attached by Sri Chand simply as movable property belonging to his judgment-debtor in the hands of the court of the Subordinate Judge. It was, therefore, subject to the provisions of the Code which deal with the satisfaction of a decree by attachment of movable property. We think the ruling relied on by the court below in Frederick Peacock v. Madan Gopal (1902) I.L.R. 29 Calc. 428 is in point and should govern our decision. We, accordingly, allow this appeal only to this extent, that we set aside the order of the court below as regards the sale proceeds deposited in the court of the Second Additional Subordinate Judge of Meerut in the month of January, 1912, as proceeds of the' auction sale held in execution of Sri Chand's own decree. The money thus deposited, Sri Chand is entitled to realize and to apply to the satisfaction of his decree.

2. We dismiss the appeal as regards the attached item of Rs. 1,139-12-3 holding that the court below was right in directing this sum to be realized for the benefit of the creditors in insolvency. The appellant will get his proportionate costs.


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