Skip to content


Shoshee Mohun Pal and ors. Vs. Dinobundhoo Pal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal217
AppellantShoshee Mohun Pal and ors.
RespondentDinobundhoo Pal
Excerpt:
insolvency - execution of decree--decree against insolvent--official assignee--purchaser at execution-sale--setting aside sale--code of civil procedure (act x of 1877), section 313. - .....the effect of that adjudication was, that all the property of the judgment-debtor vested in the official assignee. section 7 of the act, to consolidate and amend the laws relating to insolvent debtors in india, 11 and 12 vict., c. 21, provides as follows (omitting the parts not essential to the present question): 'and be it enacted that it shall be lawful for the said court to order that all the real and personal estate and effects of such petitioner, except the wearing apparel, etc., do vest in the official assignee for the time being of the said court, and such order shall be entered on record in the said court, and such notice thereof shall be published as the said court shall direct; and such order, when so made, shall, by virtue of this act, relate back to, and take, effect from,.....
Judgment:

Field, J.

1. In this case the appellant before us was the purchaser of a property sold at an execution-sale, and he applied to the Court below, in accordance with the provisions of Section 313 of the Code of Civil Procedure, to have the sale set aside, on the ground that the person whose property purported to be sold had no saleable interest therein. The facts of the case are briefly as follows: The judgment-debtor, under the decree in execution of which the property was sold, was adjudicated an insolvent by the High Court on the 19th January 1881. The decree was made in February 1881. The attachment in execution of the decree was in June 1881; and the sale was in August 1881. From this it appears that before the dates on which the decree was made, the attachment was made, and the sale was made, the judgment-debtor had been adjudicated an insolvent. Now the effect of that adjudication was, that all the property of the judgment-debtor vested in the Official Assignee. Section 7 of the Act, to consolidate and amend the laws relating to Insolvent Debtors in India, 11 and 12 Vict., c. 21, provides as follows (omitting the parts not essential to the present question): 'And be it enacted that it shall be lawful for the said Court to order that all the real and personal estate and effects of such petitioner, except the wearing apparel, etc., do vest in the Official Assignee for the time being of the said Court, and such order shall be entered on record in the said Court, and such notice thereof shall be published as the said Court shall direct; and such order, when so made, shall, by virtue of this Act, relate back to, and take, effect from, the filing of the said petition, and shall instantly, and without any conveyance or assignment, vest all the real and personal estate, effects and debts as aforesaid in the said Official Assignee, who shall have full powers for the recovery thereof, and shall hold and stand possessed of the same for the purposes and in manner hereinafter mentioned.' Now we think that the effect of these provisions was, that this particular property vested in the Official Assignee from the 19th January 1881, and this being so, we are of opinion that the judgment-debtor had no saleable interest in the property at the time when the attachment and the sale were made. Section 266 of the Code of Civil Procedure describes the property which is liable to attachment and sale in execution of a decree, and concludes thus: 'All other saleable property, moveable or immoveable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power, which he may exercise for his own benefit.' We think that, at the time of the attachment and sale, this particular property could not be said to have belonged to the judgment-debtor; nor could it be said that he had over that property or the profits thereof any disposing power which he could exercise for his own benefit. But it is contended that although the judgment-debtor may have had no saleable interest in the property at the time of the attachment and sale, yet that, inasmuch as the Official Assignee afterwards consented to receive the money for which the property had been sold, he by that act confirmed and ratified the sale. This is the view which has been taken by the Subordinate Judge, who says: 'It is true, as appears from certain documents filed on the part of the Official Assignee, that, before the property was attached and sold in this execution-case, all the properties belonging to the judgment-debtor, excepting certain moveable articles, had been vested in the Official Assignee by a vesting order passed by the Court for the Belief of the Insolvent Debtors at Calcutta, still, as the Official Assignee, by his letter dated the 17th September 1881, and subsequently by his pleader, has applied only for the assets realized by the aforesaid sale and not taken any objection to the sale, I am of opinion that the sale should not be set aside but affirmed, and the entire amount realized in this case be remitted to the Official Assignee after necessary deductions.' Now the assent of the Official Assignee can be put no higher than a conveyance by him to the appellant. We think that, as the judgment-debtor had no saleable interest in the property, the appellant, the purchaser, could not obtain any title to the property by virtue of the execution-sale. If, in consequence of the assent of the Official Assignee and his subsequent ratification of the sale, the appellant would have a good title in so far that the Official Assignee might be afterwards estopped from disputing that title, it is clear that this title would be acquired not by reason of the sale, but by estoppel as against the Official Assignee; and we think that the purchaser is entitled to exercise his option as to whether he will accept the title which the Official Assignee can give him, is entitled to say, if he chooses, that he declines to take a title which, notwithstanding the Official Assignee's assent, might afterwards be called in question, on the ground that the Official Assignee had no power to allow the sale to stand; or had, by doing so, obtained less than the market-value of the property. The real question which we have to decide is, whether, within the terms of Section 313 of the Code of Civil Procedure, the person whose property purported to be sold had any saleable interest therein,-that is, at the time of sale; and we think that, in consequence of the vesting order, the judgment-debtor had, at the time of the sale, no saleable interest in this property; and therefore, under the provisions of this section, the purchaser is entitled to have the sale set aside. We must, therefore, reverse the order of the Subordinate Judge, and decree this appeal with costs. The purchase-money will be refunded to the purchaser. The costs will be paid by the decree-holder. We allow no costs against the Official Assignee.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //