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Miller, Official Assignee and Assignee of the Estate of Gobind Chand Dugur, and anr., Insolvents Vs. Mon Mohun Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal213
AppellantMiller, Official Assignee and Assignee of the Estate of Gobind Chand Dugur, and anr., Insolvents
RespondentMon Mohun Roy
Cases Referred and Gamble v. Bholagir
Excerpt:
insolvency - vesting order--attachment before judgment after vesting order. - .....under a vesting order of court made before the order for attachment in question was passed. the district judge comes to the opposite conclusion on the authority of the case of anand chandra pal v. panchilal sarma (5 b. l. r., 691). but that case differs in two material respects from the pre0sent case. in it the question was, whether attachment after judgment shall have priority over the vesting order, and not, as here, attachment before judgment; and secondly, that case was governed by the procedure prescribed in act viii of 1859, under which the first attaching-creditor had priority over other judgment-creditors. but no such priority is allowed under the present on procedure code, act x of 1877. it seems to us that this point, viz., that preattachment before judgment does not take.....
Judgment:

Morris. J.

1. We think that an attachment before judgment cannot have effect against the Official Assignee who holds the property of the judgment debtors under a vesting order of Court made before the order for attachment in question was passed. The District Judge comes to the opposite conclusion on the authority of the case of Anand Chandra Pal v. Panchilal Sarma (5 B. L. R., 691). But that case differs in two material respects from the pre0sent case. In it the question was, whether attachment after judgment shall have priority over the vesting order, and not, as here, attachment before judgment; and secondly, that case was governed by the procedure prescribed in Act VIII of 1859, under which the first attaching-creditor had priority over other judgment-creditors. But no such priority is allowed under the present on Procedure Code, Act X of 1877. It seems to us that this point, viz., that Preattachment before judgment does not take priority over the vesting order, has the been distinctly ruled in In the matter of Gocool Doss Soonderjee, an Insolvent (1 Ind. Jur., N. S. 327) Bank of Bengal v. Newton (12 B. L. R., App. 1) and Gamble v. Bholagir (2 Bom. H. C., 146). In the last case Sir Richard Couch says sary listinctly, that an attachment before judgment 'cannot be regarded as the nception of an execution, or as binding the goods in such a manner as to exclude the right of the Official Assignee accruing after such attachment, but before judgment and warrant for execution.'

2. We, therefore, set aside the judgment of the District Judge and direct that the execution be stayed as against Gobind Chand Dugur and Sitab Chand Dugur with costs.


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