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Dambar Singh Vs. Munawar Ali Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1918All324(1); (1918)ILR40All86
AppellantDambar Singh
RespondentMunawar Ali Khan and anr.
Excerpt:
act no. iii of 1907 (provincial insolvency act), section 18 - decree obtained by insolvent before adjudication--attachment of decree--effect of subsequent adjudication on right of attaching creditor to execute. - .....belonging to sri kishan. sri kishan was declared an insolvent and his property vested in the official assignee. notwithstanding the adjudication of sri kishan the appellant sought to put into execution the decree belonging to sri kishan which he had attached in execution of his decree. the judgement-debtors objected that dambar singh was not competent to execute the decree. the court below held that the objection had force and dismissed the application. we think the decision appealed from is correct. the effect of the attachment obtained by the appellant was not to vest in him any property. it gave him, no doubt, the right to execute the attached decree, and had it not been for the insolvency he would still have that right. the insolvency, however, vested all the property of the.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. One Sri Kishan had obtained a certain decree. The appellant here obtained another decree against Sri Kishan and attached the decree belonging to Sri Kishan. Sri Kishan was declared an insolvent and his property vested in the official assignee. Notwithstanding the adjudication of Sri Kishan the appellant sought to put into execution the decree belonging to Sri Kishan which he had attached in execution of his decree. The judgement-debtors objected that Dambar Singh was not competent to execute the decree. The court below held that the objection had force and dismissed the application. We think the decision appealed from is correct. The effect of the attachment obtained by the appellant was not to vest in him any property. It gave him, no doubt, the right to execute the attached decree, and had it not been for the insolvency he would still have that right. The insolvency, however, vested all the property of the insolvent in the official assignee and in effect cancelled the attachment obtained by Dambar Singh. Once Sri Kishan was declared an insolvent, the official assignee was the only person who could execute the decree which Sri Kishan had obtained, unless the official assignee had, in realizing the estate, sold the decree to some third party. See the decision of their L3rdship3 of the Privy Council in Raghunath Das v. Sundar Das Khetri (1914) I.L.R. 42 Calc., 72.

2. In the third ground in the memorandum of appeal the appellant contends that the court below has also dismissed his application to recover certain costs which were no part of the decree belonging to Sri Kishan, but which were in fact awarded to him as costs of previous execution proceedings. We think that this objection may have force. If any costs were awarded to Dambar Singh personally against the judgement-debtors, those costs form no portion of the assets of Sri Kishan and accordingly never vested in the official assignee. Save as just mentioned we dismiss the appeal, but in doing so expressly state that the dismissal of the appeal is not to prejudice the right of the appellant (if he has any) to recover costs which were personally awarded to him. We make no order as to costs of the appeal. The order of the court below as to costs in that court will stand.


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