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A.B. Miller, Official Assignee of Bengal and Assignee to the Estate of Ambica Charan Dutt Vs. Lukhimani Dutt - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal419
AppellantA.B. Miller, Official Assignee of Bengal and Assignee to the Estate of Ambica Charan Dutt
RespondentLukhimani Dutt
Cases ReferredShib Kristo Shaha Chowdhry v. A.B. Miller
Excerpt:
insolvency act (11 and 12 vic., c. 21) - decree, attachment in execution of--vesting order--official assignee--priority of claim--civil procedure code act (xiv of 1882), section 244--whether official assignee is the representative of the judgment debtor. - .....an order for sale of the property attached was made, and on the 3rd of october, 1898, the official assignee intervened, and on the 18th of february 1899, the first subordinate judge of 24-pergunnahs passed the order, which is the subject of the present appeal. by that order he held that the decree-holder had priority in respect of the attached property over the official assignee. the latter has appealed. a preliminary objection is taken that no appeal lies in this case, on the ground that the appellant, the official assignee, is not the 'representative' of the judgment-debtor within the meaning of clause (c) of section 244 of the code of civil procedure. the point is not free from difficulty. there are authorities in the allahabad and bombay high courts; the first is the case of.....
Judgment:

Maclean, C.J.

1. Two points arise upon this appeal. The facts stated shortly, are these: In 1895 the decree-holder, in a suit to enforce his mortgage, attached certain immoveable property. In 1898, one of the judgment-debtors was declared an insolvent. On the 6th of May 1898 a vesting order was duly made in the insolvency proceedings. Subsequently an order for sale of the property attached was made, and on the 3rd of October, 1898, the Official Assignee intervened, and on the 18th of February 1899, the First Subordinate Judge of 24-Pergunnahs passed the order, which is the subject of the present appeal. By that order he held that the decree-holder had priority in respect of the attached property over the Official Assignee. The latter has appealed. A preliminary objection is taken that no appeal lies in this case, on the ground that the appellant, the Official Assignee, is not the 'representative' of the judgment-debtor within the meaning of Clause (c) of Section 244 of the Code of Civil Procedure. The point is not free from difficulty. There are authorities in the Allahabad and Bombay High Courts; the first is the case of Kashi Prasad v. Miller (1885) I.L.R. 7 All. 752 and the second, where, however, the points is only incidentally touched upon, is the case of Sardarmal Jagonath v. Aranvayal Sabhapathy Moodliar (1896) I.L.R. 21 Bom. 205 (219) which are against the view of the Official Assignee being the 'representative' within the meaning of the section. If these authorities be well founded, no appeal lies to this Court.

2. It is not necessary for the purposes of to-day to decide the point, but the inclination of my opinion is against the above view. It seems to be a somewhat narrow construction to place on the term 'representative,' looking at the position in which the Assignee stands to the insolvent. The Official Assignee no doubt represents is one sense, the interests of the judgment-debtor's creditors generally, but can it be justly said that he does not also represent the interests of the Judgment-debtor himself? For instance to the extent of any surplus remaining after paying the creditors, the Official Assignee represents the debtors in respect of that surplus.

3. Upon the merits it looks, at first sight, as if there were a conflict between two Full Bench decisions, viz., the one Anund Chunder Pal v. Punchoo Lall Soobalah (1870) 14 W.R. (F.B.) 33 in which it was distinctly held that the Official Assignee can only take the interest, which the judgment-debtor had, which in this case would be an interest subject to the rights of the attaching creditor, and the other Shib Kristo Shaha Chowdhry v. A.B. Miller (1888) I.L.R. 10 Cal. 150. But there is this distinction between the last mentioned case and the present one; in the former the attachment was before Judgment; here it is after decree. But apart from this distinction, which, perhaps, in principle is not very matertial, my view is that the law, as propounded in the earlier case, ought to be followed on the short ground that the Official Assignee stands in the shoes of the insolvent, and that he takes the property subject to any equities, which are good as against the latter. In other words the Official Assignee cannot be in a better position than the insolvent.

4. The appeal, therefore, fails and must be dismissed with costs. The record may be sent down AS early as possible.

Banerjee, J.

5. I am of the same opinion. There are two questions arising for determination in this case: Frist, whether the Official Assignee is the representative of the insolvent Judgment-debtor within the meaning of Section 244 of the Code of Civil Procedure, and the point determined in this case is, consequently, one under Clause (c) of that section, so as to make the order of the Court below appealable; and, second, whether a vesting order made under the Insolvency Act 11 and 12 Vic. Clause 21, has the effect of giving the Official Assignee priority over the claim of a judgment-creditor in respect of property attached at his instance previous to the passing of such order.

6. Upon the first question I may say that the matter is not free from doubt and difficulty. The question whether the point in this case comes under the Clause (c) of Section 244 of the Code of Civil Procedure has to be determined with reference to the nature of the objection raised by the Official Assignee. His objection here was that the property in dispute, though belonging to the Judgment-debtor, was not liable to be sold in execution of the decree obtained by the respondents against him, by reason of the order passed in the insolvency proceedings. So far as that objection goes the Official Assignee represents not so much the judgment-debtor as the creditors taken as a body. But though that is so, it must be borne in mind that, if the Official Assignee succeeds in defeating the present application for execution of the decree, the property released from attachment will go to augment the assets of the insolvent for distribution among his creditors, and may help to secure the final discharge of the insolvent under Section 59 of the Act.

7. and I may add that the Official Assignee so far represents the judgment-debtor that all the property that the Judgment-debtor may have, is vested in him. He may also, under Section 29 of the Statute, institute and defend actions and suits on behalf of the insolvent. On the whole, therefore, I agree with the learned Chief Justice in holding that the Official Assignee is a representative of the insolvent Judgment-debtor within the meaning of Section 244 of the Code, and that the order appealed against is, therefore, appealable.

8. On the second point raised in this case, I need only say that it is governed by the decision of the Full Bench in the case of Anund Chander Pal v. Punchoo Lall (1870) 14 W.R. (F.B) 33 and that the case of Shib Kristo Shaha Chowdhry v. A.B. Miller (1883) I.L.R. 19 Cal. 158 is distinguishable from the present, as the attachment in that case was one before judgment and not in execution of a decree, as it was in this case.


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