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Ramasami Kottadiar and ors. Vs. Murugesa Madali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1897)7MLJ229
AppellantRamasami Kottadiar and ors.
RespondentMurugesa Madali and ors.
Excerpt:
- .....by one venkatesa tawker. for the payment of his debts, sued to set aside the attachment of tawker's property made by one of his creditors and also to set aside certain sales made under the attachment. before the order of attachment was issued, tawker had applied to the commissioner of insolvency, madras, to be declared an insolvent and a vesting order had been, made., subsequent to the issue of the attachment the insolvency petition was dismissed and the vesting order discharged. the order of attachment was not objected to, nor was it withdawn before the vesting order was discharged. some of the properties attached were afterwards sold in pursuance of the attachment and were purchased by the defendants. the rest of the property remained under attachment the plaintiffs were.....
Judgment:

1. The plaintiff's, as trustees appointed by one Venkatesa Tawker. for the payment of his debts, sued to set aside the attachment of Tawker's property made by one of his creditors and also to set aside certain sales made under the attachment. Before the order of attachment was issued, Tawker had applied to the Commissioner of Insolvency, Madras, to be declared an insolvent and a vesting order had been, made., Subsequent to the issue of the attachment the insolvency petition was dismissed and the vesting order discharged. The order of attachment was not objected to, nor was it withdawn before the vesting order was discharged. Some of the properties attached were afterwards sold in pursuance of the attachment and were purchased by the defendants. The rest of the property remained under attachment The plaintiffs were appointed trustees by an instrument of the same date as the discharge of the vesting orders. They contend that the attachment having been made during the continuance of the vesting order, the judgment-debtor had no interest on which the attachment could operate, and that it was, therefore, invalid as against them. We do not think, that this argument is sound, The effect of the provisos to Section 7 of the Insolvency;Act (II & 12 Vic, ch. 21) was to revest Tawker's property in him as from the date of the vesting order, plainti however, to all acts done by the assignee, or under his authority, during the continuance, of the vesting order.

2. We think, therefore, that the attachment may properly be held to be capable of operating on Tawker's property as from the date of its first issue; but, in any case, it must be held to have taken effect from the moment of the discharge of the vesting Order That being so, it took effect 'in any view, before the plainti acquired an interest under the trust deed. The deeree.of the Sub-Judge must, therefore, be set aside and that of the District Munsif dismissing the suit restored. The plaintiff must pay defendants' costs throughout.

3. The suit having been disposed of on the grounds stated above, it is not necessary for us to decide the other question argued before us as to whether Section 42 of the Specific Belief Act is a bar to the suit as framed.


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