1. The question referred to us is whether a vesting order made under the Insolvency Act (11 and 12 Vict. Clause 21) has or has not the effect of giving the Official Assignee priority over the claim of a judgment-creditor in respect of property attached at the latter's instance previous to the passing of such order.
2. I am not sure that the question would not have been better framed, if it had been 'whether a judgment-creditor has priority over the Official Assignee in respect of property attached by him previous to the passing of the vesting order,' but the distinction is not of much importance.
3. The reference has arisen from a difference of opinion in the case of J. B. Miller v. Lukhlmani Debi (1901) I. L. R, 28 Calc. 419, on the one hand, and of Soobul Chunder Law v. Bussik Latt Miller (1888) I. L. R. 15 Calc. 202, on the other.
4. It is worthy of immediate notice that the latter case was not brought to the attention of the Court which decided the case of A. B. Miller v. Lukhimani Bebi (1888) I. L. R. 15 Calc. 202, to which decision I was a party.
5. It seems to me that the first question we have to consider is whether the judgment-creditor, who had attached his debtor's property before the bankruptcy proceedings, has obtained by that attachment any charge or lien upon the attached property.
6. In the Full Bench case of Anand Chandra Pal v. Panchilal Sarma (1870) 5 B. L. R. 691, it was considered that the judgment-creditor, who had obtained an attachment, had a charge or lien upon the attached property; and that view is also expressed, at any rate, by one of the Judges in the Full Bench case of shib Kristo Shaha Chowdhry v. A. B. Miller (1883) I. L. R. 10 Calc. 150. But in the case of Soobul Chunder Liw v. Russik Lall Mitter (1888) I. L. R. 15 Calc. 202, it is distinctly laid down that the attachment creates no charge upon the property, and that view is supported by a recent case before the Judicial Committee of the Privy Council, Moti Lal v. Karrabuldin (1897) I. L. R. 25 Calc. 179, where it is distinctly held that attachment under Chapter XIX of the Code of Civil Procedure merely prevents alienation and does not give title. In advising Her late Majesty their Lordships say this: 'Attachment, however, only prevents alienation; it does not confer any title.'
7. I think, therefore, it must be taken that the attaching creditor here(sic) obtain by his attachment any charge or lien upon the (sic) property upon the at property, and if so, no question as to the Official Assignee only taking the property of the insolvent subject to any equities affecting it, can arise. But even if there was such a lien, the law as it stands now is different from what it was, when the Full Bench case of Anand Chandra Pal v. Panchilal Sarma (1870) 5 B. L. R. 691, was decided. There is a marked distinction between the language of Section 270 of the Code of 1859 and Section 295 of the present Code, which governs the present case.
8. Under Section 270 of the Code of 1859 a creditor obtaining an attachment, was entitled to be first paid out of the proceeds of the sale, notwithstanding a subsequent attachment of the same property by any party in execution of his decree, but Section 295 of the present Code points to a rateable distribution of the proceeds of sale under a decree in certain events and under certain circumstances.
9. If, then, the attaching creditor had obtained a charge or: a lien upon the attached property, it would have been difficult, having regard to the change in the law, to hold that he was solely entitled as against the Official Assignee to the proceeds' of sale under the decree. It is unfortunate that the case of; Soolul Chunder Law v. Bussik Loll Mitter (1) was not cited to us, when Mr. Justice Bannerjee and I decided the case of A. B. Miller v. Lukhimani Debi (1901) I. L. R. 28 Calc. 419 and that the arguments which have been addressed to us to-day, the arguments based upon the difference between Section 270 of the old Code and Section 295 of the present, were not called to our attention. Nor was the Privy Council case, to which I have referred, cited before us.
10. On these grounds I think that the question referred to us ought to be answered by saying that the judgment-creditor, under the circumstances, has no priority over the Official Assignee m respect of the property attached.
11. I am of the same opinion. In my opinion the I case should be decided in accordance with the judgment of the Court in the case of Soobul Chunder Law v. Bussik Lall Mitter A (1888) I. L.B. 15 Calc. 202. There is no priority in a matter of this description. The expression, no doubt, is derived from the (sic) 270 of the Code of 1859, which gave the first attaching (sic) the right to be paid before other persons could participate in the money realised from the judgment-debtor, but Section 270 has been repealed and it has been re-enacted in an entirely different form in Section 295 of the present Code. Under Section 295 all decree-holders, who have applied for execution of their decrees for money against the same judgment-debtor before the realisation of assets from him, are entitled to rateable distribution. If the judgment-creditor in the present case be allowed to execute his decree in spite of the opposition of the Official Assignee, who represents him and all the other creditors, only those creditors, the may have obtained decrees, will be entitled to rateable participation with aim in monies realised, and the object for which the Official Assignee has been appointed will be frustrated.
12. I agree in the judgment delivered by my Lord the Chief justice and the answer which he proposes to give to this reference.
13. I agree with my Lord. I am clearly of opinion that the attaching creditor did not acquire any title or charge upon the property by reason of the attachment in question; and it seems to me, having regard to the provisions of Section 295 of the Code, which has already been referred to by the learned Chief Justice, that he cannot claim any priority as against the Official Assignee, who represents not only the insolvent, but the whole body of the creditors.
14. I agree with my Lord and have nothing to add.
15. I agree with my Lord the Chief Justice.
16. Attorney for the Official Assignee: Priya Nath Sen.