1. On 29-6-1953 the respondent Hugh Osbert Sheane Smith obtained a decree in the Small Cause Court Suit No. 1150 of 1953 against Frank Morton Fisk.
2. On 12-1-1954 the Court of Small Causes issued a prohibitory order under Order 21, Rule 48, C. P. O. directing the Accountant General, West Bengal, to withhold Rs. 655/9/6 from the salary of the judgment-debtor.
3. Shortly thereafter the judgment-debtor paid a sum of Rs. 250/- to the judgment-creditor and only a sum of Rs. 405/9/6 remained dne to the judgment-creditor.
4. On 22-4-1954 the Accountant-General, West Bengal, sent to the Court of Small Causes a cheque No. 138857 dated 1-4-1954, for a sum of Rs. 550/-which had been withheld from the salary of the judgment-debtor.
5. On 3-4-1954 the Court returned the cheque to the Accountant-General, West Bengal, for correction. Tne Court did not accept the cneque in view of the fact that only Rs. 405/9/6 was then due to the judgment-creditor.
6. On 5-4-1954 the judgment-debtor was adjudged insolvent by this Court on a petition presented by him to this Court on the same date.
7. By a letter dated 27-4-1954 the Official Assignee, Calcutta, informed the Registrar,' Court of Small Causes, of the order of adjudication and asked for a stay of all proceedings against the insolvent and for withdrawal of the attachment order, if any, against the property and to communicate the Court's order which may be passed later on. The Official Assignee seems to have sent a reminder dated 27-5-1954 but copy of this reminder is not on the record. On 29-5-1954 the Court perused the letters dated 27-4-1954 and 27-5-1954, heard the. pleader of the judgment-creditor and passed an order that the Accountant-General, West Bengal, be written to remit Rs. 405/9/6 to the Court of Small Causes and the balance to the Official Assignee. In passing this order the Court observed that the sum of Rs. 550/- ceased to be the property of the judgment-debtor and was held by the Accountant-General, West Bengal, on behalf of the court as soon as it was recovered from the salary 01 the judgment-debtor and a cheque for the same was sent to the Court.
8. On or about 27-7-1954 the Accountant-General, West Bengal, issued two fresh cheques, viz. cheque No. 155100 for Rs. 405/9/6 to the Court of Small Causes and another cheque for Rs. 144/9/6 to the Official Assignee.
9. On or about 6-8-1954 the judgment-creditor withdrew a sum of Rs. 405/9/6 and sent the same to the Court of Small Causes.
10. On or about 14-8-1954 the Official Assignee took out this notice of motion asking for a declaration of title to and for payment of the sum of Rs. 550/- remitted to the court by the Accountant-General, West Bengal. The notice has been subsequently amended by addition of a prayer that the judgment-creditor be directed to pay to the OfficialAssignee the sum of Rs. 405/9/6 withdrawn by himfrom the Court of Small Causes.
11. The parties through their respective lawyers have agreed before me that the dispute between the parties may be decided summarily on this application and that the Official Assignee need not file a suit,
12. Clearly the order of attachment dated 12-1-1954 did not create any charge on the salary of the judgment-debtor.
13. The salary of the judgment-debtor did cot cease to be his property and did not become the property of the judgment-creditor simply because it was withheld by the Accountant-General, West Bengal, and was remitted to this court in obedience to the prohibitory order under Order 21, Rule 48 Code of Civil Procedure.
14. Upon the insolvency of the judgment-debtor the rights of the Official Assignee and of the judgment-creditor must be decided with reference to the provisions of Section 53(1), Presidency Towns Insolvency Act, which provides:
'Where execution of a decree has issued against the property of a debtor, no person shall be entitled to the benefit of the execution against the efficial assignee, except in respect of assets realised in the course of the execution by sale or otherwise belore the date of the'order of adjudication and belore he had notice of the presentation of any insolvency petition for or against the debtor.'
15. The judgment-debtor is entitled to the benefit of his execution against the salary of the insolvent only in respect to assets realised in course of execution before 5-4-1949.
16. Assets are realised in the course of ex-ecution if they are reduced into possession in a form which renders them available for immediate satisfaction of the decree which is being executed.
17. In case of execution of a decree for money nothing short of receipt of the money or the equi-lvalent of money can amount to realisation of assets.
18. Where a cheque is sent by the garnishee and the Court accepts the cheque with a view to endorse and hand it over to the judgment-creditor it is possible to say on the analogy of Jogeshprasad v. Lachminarayan, 45 Cal WN 674 (A) that the remittance and okacceptance of a cheque amounts to realisation of assets. But the cheque for Rs. 550/-sent by the Official Assignee on 2-4-1954, was not accepted by the Court. A sum less than Rs. 550/-was then due to the judgment-creditor and the Court was not competent to endorse the cheque to the judgment-creditor. The Court refused to accept the cheque and returned the cheque to the Accountant-General, West Bengal, on 3-4-1954. In these circumstances the assets were not realised in course of execution before 5-4-1954. The Court received a new cheque for Rs. 409/5/6 on 27-7-1946 and the money represented by this cheque was shortly thereafter paid over to the judgment-creditor. The money received by the judgment-creditor represents assets realised after the date of the order of adjudication and the title of the Official Assignee prevails against the judgment-creditor.
19. Where the judgment-creditor has received 'money realised in execution after the date of the order of adjudication the Insolvency Court under Section 7, Presidency Towns Insolvency Act, has jurisdiction to direct him to refund the money. Official Receiver Jullunder v. Labhuram, 14 Lah 724 : (AIR 1933 Lah 477) (B).
20. The contention that the claim of the Offi-eial Assignee is barred by res judicata Is baseless for various reasons.
21. The letter of the Official Assignee dated27-4-1954 requesting the Court of Small Causes to stay proceedings and to withdraw attachments against the property of the insolvent-appears to have been dealt with by the court administratively without notice to the Official Assignee. The Official Assignee was not represented and was not heard when the order dated 29-5-1954 was passed. The order itself appears to be an administrative direction for the issue of an appropriate letter to the Accountant-General, West Bengal.
22. The letter, dated 29-4-1954 does not request the Court of Small Causes to adjudicate upon the title to any money lying with the Accountant General, West Bengal, and any expression of opinion on the question of title' to such money was beyond the scope of the letter under consideration.
23. An application by the Official Assignee to the executing court for the adjudication of title to the assets realised under an attachment levied before the adjudication order is not an application under Section 47 of the Code of Civil Procedure, as the Official Assignee is not the representative of the judgment-debtor within the meaning of that section. It is also not an application under Order 21, Rule 58 of the Code of Civil Procedure, because the vesting order was made and the claim of the Official Assignee arose subsequent to the attachment. Assuming that the claim of the Official Assignee was dealt with by the Court of Small Causes judicially by the order dated 15-4-1954, the order was passed under Section 151 of the Code of Civil Procedure. The order is not conclusive and does not bar appropriate proceedings for declaration of title to and refund of the moneys realised by the judgment-creditor as moneys had and received to the use of the Official Assignee, see Official Receiver v. Veeraraghavan, Bir Raghaban, 45 Mad 70 : (AIR 1922 Mad 189) (C).
24. The Notice of Motion taken out by tho Official Assignee was defective. But for the very fair attitude of learned counsel for the respondent, the Notice of Motion was liable to be dismissed. In all the circumstances of the case, I think I ought to allow the respondent to, deduct certain assessed costs out of the moneys lying in his hands.
25. I make the following order:
26. There will be an order in terms of prayer (a) of the Notice of Motion.
27. I direct the respondent to pay to the Official Assignee the sum of Rs. 405/9/6 withdrawn by the respondent from the Court of Small Causes after retaining and deducting therefrom a sum of Rs. 119/- as his assessed costs of the application.
28. The Official Assignee will be at liberty to retain the costs of this application out of the assets -of the insolvent.