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Kashi Prasad and anr. Vs. Miller - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All752
AppellantKashi Prasad and anr.
RespondentMiller
Excerpt:
execution of decree - attachment of property--judgment-debtor declared an insolvent--claim by official assignee to attached property--appeal from order disallowing claim--statute 11 & 12 vic. c. 21, sections 7, 49--civil procedure code, sections 244, 278--'representative' of judgment-debtor. - .....court made an order under stat. 11 and 12 vic, c. 21, section 7, vesting their property in the official assignee, who is the respondent before us.3. on the 2nd june 1883, the official assignee made an application in the court of the subordinate judge of cawnpore, where the execution of the decree was pending, for the release of the property from attachment, and that the property be made over to him. on the 6th september 1883, the subordinate judge dismissed the application, and the official assignee appealed to the judge, who reversed the order and allowed the application. the judgment-creditors now prefer an appeal to this court from the judge's order. there are two contentions raised--(1) that no appeal lay in the matter to the judge; (2) that the judgment-creditor, by reason of.....
Judgment:

Oldfield and Tyreell, J.

1. It appears that the firm of Gaya Prasad and Kashi Prasad, represented by appellant, obtained a decree against Chota Lal and Sheo Prasad for money due, on the 31st March 1883. They had, on the 2nd March 1883, attached property of the judgment-debtors before judgment, and the attachment continued in force after decree, and they took out execution, and on the 4th April 1883, obtained an order for the sale of the attached property.

2. The judgment-debtors, prior to sale, applied on the 11th April 1883, in the Calcutta High Court, to be declared insolvents, and on the 11th April 1883, the High Court made an order under Stat. 11 and 12 Vic, c. 21, Section 7, vesting their property in the Official Assignee, who is the respondent before us.

3. On the 2nd June 1883, the Official Assignee made an application in the Court of the Subordinate Judge of Cawnpore, where the execution of the decree was pending, for the release of the property from attachment, and that the property be made over to him. On the 6th September 1883, the Subordinate Judge dismissed the application, and the Official Assignee appealed to the Judge, who reversed the order and allowed the application. The judgment-creditors now prefer an appeal to this Court from the Judge's order. There are two contentions raised--(1) that no appeal lay in the matter to the Judge; (2) that the judgment-creditor, by reason of having attached the property of his judgment-debtors, and obtained an order for sale before the date of the vesting order, which vested the property in the Official Assignee, obtained rights in the property which cannot be affected by the vesting order. In order to determine the first question, we have to see how the application on the part of the Official Assignee came before the Court executing the decree, and what jurisdiction it had in the matter. The order vesting the real and personal estate of the insolvents in the Official Assignee was made under Section 7, Statutes 11 and 12 Vic, c. 21, and Section 49 enables the Court in which any action, suit, execution or process is pending in respect of a debt or demand contained in an insolvent's schedule, to stay the proceedings or set aside or suspend the execution or process, so far as respects the debt or demand, until further order of the Court which made the vesting order. But the matter did not come before the Subordinate Judge under this section. It refers to cases where the insolvent's schedule has been filed, and to debts or demands admitted in the schedule, and no schedule had been filed at the time of. the Official Assignee's application. The Subordinate Judge could therefore only entertain the application under the provisions of the Code of Civil Procedure relating to execution of decrees. Section 244 relates to questions between parties to the suit in which the decree was passed or their representatives relating to the execution of the decree; and Section 278 to objections by third parties to attachment of property made in execution of the decree. Now, if the application is to be considered as one to be dealt with, and which was dealt with, under Section 278 and succeeding sections, the order made on it was not appealable to the Judge, and the appellant's contention-that the Judge had no jurisdiction is valid. If, on the other hand, the application was. one to be dealt with under Section 244, the Subordinate Judge would have jurisdiction, and the appeal was cognizable by the Judge. Did, then, the matter of the application relate to questions between the parties to the suit or their representatives, and in regard to the execution, discharge or satisfaction of the decree? In other words, can the Official Assignee be held to be a representative of the judgment-debtor within the meaning of Section 244, and does his application relate to the execution, discharge or satisfaction of the decree? We do not think this can be held. The Official Assignee did not apply to the Court as one representing the judgment-debtor in regard to any matter relating to the execution, discharge or satisfaction of the decree, but as a third party in whom the insolvent debtor's property had become vested under the Insolvent Debtors Act, and his object was to have the attachment withdrawn and the property made over to him, not for any purpose of execution of the decree, but that he might deal with it under the provisions of the Act for the benefit of the general body of the creditors. As a matter of fact, he appears to have made his application under Section 278, and it was so treated by the Subordinate Judge. Nor can the Official Assignee be considered to be a representative of the judgment-debtor within the meaning of Section 244. He represents the general body of the creditors for whose benefit the property of the judgment-debtor is vested in him in trust, and it was in this capacity, as representing them and for their benefit, that he made his application.

4. The Judge has, therefore, erred in regarding the respondent as a representative of the judgment-debtor and treating the matter as one to be dealt with under Section 244, Civil Procedure Code, the order on which was open to appeal; and we cannot find that he is supported by the case he refers to Miller v. Mon Mohun Roy I.L.R. 7 Cal. 213 as there was no ruling in that case to the effect that the Official Assignee can be regarded as a representative of the judgment-debtor, and an application of this nature is one to be dealt with under Section 244, Civil Procedure Code.

5. We are of opinion, therefore, that the Subordinate Judge had only jurisdiction in the matter under Section 278, and he disposed of the application under that section, and the Judge had no jurisdiction to entertain the appeal. It is not necessary for us to consider the second question raised. We decree the appeal and set aside the Judge's order with costs.


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