1. In this case it is stated on behalf of the petitioner that the order as it stands is not made against his brother, but that the Subordinate Judge intended to make it against him and that it was applied for against him though he was wrongly styled 1st defendant in his application instead of 2nd defendant. 1 have not rejected his petition as premature, because it appears that this mistake has been made and that all that is necessary is for the Subordinate Judge to have the necessary amendments made; and the respondent did not ask me to refuse .the petitioner a hearing. It seems more satisfactory that I should dispose of the matter, both parties being willing, because if I hold the Subordinate Judge right, he can get the amendment made and review his order so as to correct the mistake while if I hold him wrong, it may be that no further proceedings will he necessary in the matter.
2. The petitioner is drawing a Salary of Rs. 60 a month. Some years ago a vesting order was made against him under Section 7 of the Indian Insolvency Act and he has since obtained his personal discharge under Section 48. The respondent, is a creditor, who, prior to the insolvency proceedings, had obtained a decree against the petitioner, and was among the creditors whose claims were entered in the schedule. He now attaches the petitioner's salary in execution of his decree and the petitioner objects.
3. In seems to me that the view of Farran, J. in the matter of C.M.J. Doughee 19 B. 232, where he holds that salary vests in the Official Assignee under Section 7 is correct and that the effect of Section 27 is not to cut down Section 7 but to require the Official Assignee before he can obtain payment of the salary to obtain the order of the Court as to the amount which is necessary for the maintenance of the insolvents.
4. In In re Roberts (1900) 1 Q.B. 122 : 69 L.J.Q.B. 19 : 81 L.T. 467 : 48 W.R. 132 : 7 Manson 5. the Court of Appeal held that after bankruptcy and before discharge whatever property a bankrupt acquires belongs to his trustee save only what is necessary for his support. That was a case of personal earnings but for this purpose there seems to be no material difference between personal earnings and salary and there is nothing in Section 7 to suggest a contrary view in this country. The salary as I understand the matter, vests in the Official Assignee, but he cannot get, any of it until the Court makes an order under Section 27. It was argued that the debtor has no right to object to the attachment but no authority was cited in support of the contention and I do not know of any good reason why a debtor should not be allowed to show, if he can, that property, which is attached as his, does not belong to him but to someone else.
5. It remains to be considered what is the proper order to make under the circumstances. The decree is a decree of 1902 and the insolvent was according to his affidavit discharged under Section 48 of the Indian Insolvency Act. It is therefore, not improbable that other creditors are still unsatisfied and I think the Official Assignee should have an opportunity of obtaining on their behalf an order under Section 27 before the Subordinate Judge's order of attachment is carried into effect. My order will, therefore, be that the execution be suspended under Section 49 of the Indian Insolvency Act until the further order of the Subordinate Judge, leaving it to the respondent to take such steps as he may be advised in order to bring the matter to the notice of the Official Assignee.
6. Paragraph 3 of the petitioner's affidavit, which is not denied, shows that the respondent had the necessary notice of the insolvency proceedings. The respondent must, therefore, under Section 49 pay the petitioner's costs here and below.