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Firm Standing in the Name of Gour Charan-ganga Charan Saha Vs. ToyebuddIn Ahmed, Receiver to the Estate of Abdur Rahaman Sowdagar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal43,49Ind.Cas.480
AppellantFirm Standing in the Name of Gour Charan-ganga Charan Saha
RespondentToyebuddIn Ahmed, Receiver to the Estate of Abdur Rahaman Sowdagar
Excerpt:
provincial insolvency act (iii of 1907), section 34 - assets realized before adjudication order by execution-creditor--creditor, whether entitled to assets--receiver, rights of. - .....the question is whether under the provisions of section 34 of the provincial insolvency act an execution-creditor is entitled to the benefit of certain assets representing property which had been sold prior to the date of the adjudication order. the case is quite clear that these properties excepting the packing oases were sold prior to the institution of the insolvency and that the money, being the proceeds of moveable property, had been realized and paid into court. in that view of the case, it seems to me that the assets had been realized in the course of the execution by sale or otherwise, as mentioned in emotion 34 of the provincial insolvency act, before the date of the order of adjudication. if the assets had been realized in the course of execution by sale or otherwise before.....
Judgment:

1. This appeal is preferred by an execution-creditor in an execution proceeding, the respondent to the appeal who does not appear is' the Receiver in insolvency appointed under the provisions of the Provincial Insolvency Act in a proceeding in which the judgment debtor was adjudicated an insolvent. The question is whether under the provisions of Section 34 of the Provincial Insolvency Act an execution-creditor is entitled to the benefit of certain assets representing property which had been sold prior to the date of the adjudication order. The case is quite clear that these properties excepting the packing oases were sold prior to the institution of the insolvency and that the money, being the proceeds of moveable property, had been realized and paid into Court. In that view of the case, it seems to me that the assets had been realized in the course of the execution by sale or otherwise, as mentioned in emotion 34 of the Provincial Insolvency Act, before the date of the order of adjudication. If the assets had been realized in the course of execution by sale or otherwise before the date of the order of adjudication, then an execution-creditor is entitled to the benefit of the execution against the Receiver. That is exactly what has happened in this case. The order of the learned District Judge must be set aside, except as regards the parcel of goods which it is stated by the learned Judge was sold some days after the adjudication order was passed and which we are informed consisted only of the packing cases. As. to the value of those goods, of course, the sale having been made after the, date of the adjudication order, the Receiver in insolvency is entitled to it. Otherwise, the money having been realized in execution before that date of the insolvency belongs to the execution-creditor. Let the case be sent back to the learned Judge of the Court below for disposal of the application in accordance with the above remarks. We make no order as to costs.


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