1. The only question arising or consideration in this appeal is whether the restriction of the rights of creditors as contemplated by Section 51, Provincial Insolvency Act was applicable in favour of the appellant Akshoy Kumar Chatterjea, representing the firm of Messrs. D.N. Chatterjee and Co., who as a creditor, has applied for the adjudication of one Atul Kristo Nath as an insolvent. The facts leading up to the order made by the learned District Judge of Hooghly on 28th January 1932 against which this appeal is directed, may be briefly referred to, so far as they are relevant for the purpose of the appeal before us. The appellant applied to the Court for an order of adjudication on 26th February 1929. On the admission of the petition for adjudication and the appointment of a receiver in insolvency there was an application by the appellant, on 12th August 1929, for staying sale in Money Execution Case No. 94 of 1929 of the Second Subordinate Judge's Court at Hooghly. This was an execution case arising out of a decree passed against the insolvent, and the decree-holder was one Raj Kumar Hari Das Mandal, who was one of the creditors mentioned in the application for adjudication.
2. It appears that the Court directed, after hearing the pleader for the appellant as also the pleader for the creditors Raj Kumar Hari Das Mandal and others that the execution case was to proceed and a sale was to be held; but that the money realized in the execution case was to be kept in deposit to the credit of the insolvency Court, until further orders. This order was made on 24th August 1929, and intimation was in due course sent to the executing Court. On 9th October 1931 the application for an order of adjudication, made by the appellant in this Court, was dismissed on the ground that there was violation of the provisions of Section 19(3), Provincial Insolvency Act, relating to the service of notices, as also for the reason that the petition for adjudication was defective, as there was no compliance with the provisions of Section 13(2)(a) of the Act. A fresh application was made by the appellant Akshoy Kumar Chatterjee representing the firm of Messrs. D.N. Chatterjee and Co., for an order of adjudication. This application was filed in Court on 25th November 1931, and it was followed by a petition to the Court for withholding payment of the money lying to the credit of the Court, in Insolvency Case No. 91 of 1929. That was the insolvency case which was started on the application made by the appellant on 26th February 1929, and which was ultimately dismissed on 9th October 1931. The learned District Judge's order on the prayer made by the petitioners was that the amount in deposit was to be withheld for the present and the order as recorded on 15th December 1931 indicates that the other creditors might appear and move for having that order set aside.
3. Information was given of this order passed by the learned District Judge to the Subordinate Judge, Second Court, Hooghly. On 8th January 1932, creditor No. 1 appeared, and filed a petition praying for an order vacating the order withholding payment of money which was made by the learned Judge on 15th December 1931. On the prayer made on this petition filed on 8th January 1932, the learned District Judge made an order against which the appeal to this Court is directed. The objection of the creditor No. 1 was allowed, and the order withholding payment of the money lying in deposit was vacated by the learned District Judge. On a plain reading of the provisions contained in Section 51, Provincial Insolvency Act, it was incumbent upon the appellant to make out that the moneys which he asked the Court exercising jurisdiction under the Provincial Insolvency Act to withhold were assets realized in the course of execution by sale after the date of admission of the petition filed by him for adjudging Atul Kristo Nath as insolvent. This petition was admitted by the learned District Judge on 25th November 1931, and the assets were realized in course of an execution by sale long before that date. On this ground alone the appellant was altogether out of Court; and could not be heard to say that the provisions contained in Section 51, Provincial Insolvency Act, could come to his aid, and could be availed of by him in any way. It has been strenuously contended before us that the proceeding now pending before the District Judge is merely a continuation of the previous proceeding, started on the application of the appellant, filed in Court on 26th February 1929, and which application came to be dismissed on 9th October 1931.
4. This position is taken up in spite of the fact that the previous application for adjudication was rejected. It is not possible to accept the contention of the appellant in this behalf; and we are clearly of opinion that the proceeding now pending before the learned District Judge was a fresh proceeding, started on the application of the appellant filed on 25th November 1931, and it could not be treated to be one in continuation of the proceeding which came to an end by the dismissal of the application for an order of adjudication made on 26th February 1928. The assets to which the order of the District Judge passed on 28th January 1932 relates were undoubtedly assets realized in the course of an execution by sale before the data of the said application. We are not further prepared to introduce complication in the matter of dealing with a simple question involved in the case before us, by adverting to the attitude of the creditor No. 1 who opposed the application of the appellant praying for withholding the money by the insolvency Court. We are further of opinion that the fact that the money was held in deposit to the credit of the insolvency Court did not improve the case of the appellant in any way, seeing that the material date was 25th November. 1931 long before which the money was realized by sale in execution. The District Judge exercising jurisdiction under the Provincial Insolvency Act, by virtue of the application filed on 25th November 1931, was not under the law, competent to deal with the money in deposit, in any way other than one in which it has been dealt with by him. In the above view of the case, the appeal fails and it is dismissed. The order of the Court below is affirmed. The respondents are entitled to their costs in this appeal. The hearing fee is assessed at five gold mohurs. The Rule issued by this Court in connexion with this appeal stands discharged.
5. I agree.