KASHI PROSAD KHAITAN Vs. G W BURLOW

JUDGEMENT

(1.) The only substantial question of law which arises in this appeal is whether the creditor of an undischarged insolvent who became a creditor after the adjudication had been made is entitled to attach the salary of the judgment-debtor. It is necessary to state the following facts in brief in order to appreciate how this point of law has arisen in this appeal.

(2.) G.W. Burlow, who is respondent in this appeal is a Driver employed in the Eastern Railway. It is an admitted fact that at present he has been drawing a salary of Rs. 700/- per month. He borrowed a certain sum of money from the appellant on a promissory note and it is not disputed before us that the appellant has got a decree against the respondent on the basis of that handnote for a sum of Rs. 3,571/-and odd annas with interest running at six per cent per annum upon the decretal amount. This decree was obtained on 25-2-1955. The decree has been put to execution and the decree-holder has made a prayer for realising the decretal amount by attaching that portion of the salary of the judgment-debtor which is attachable under the law. The judgment-debtor raised an objection to the execution of the decree in this manner contending that he has been adjudged an insolvent on 5-5-4941 in Insolvency Case No. 3 of 1941! in the Court of the District Judge, Manbhum and Singhbhum and that he has not yet got his discharge. The judgment-debtor further submitted that under the order of the District Judge passed in the insolvency case, a sum of Rs. 60/- per month is being deducted from his salary and the application for execution having been made in contravention of the provisions of the Provincial Insolvency Act it is not legally maintainable. This objection of the judgment-debtor found favour with the executing Court which struck off the execution case as being not maintainable. That order was also affirmed in appeal and so the decree-holder has preferred this Second Appeal.

(3.) Mr. Chatterjee appearing on behalf of the decree-holder appellant contended before us that the Courts below were wrong in holding that no portion of the salary of the judgment-debtor is attachable. He drew our attention to the fact that the judgment-debtor is at present drawing a salary of Rs. 700/- permensem. Mr. Chatterjee submitted that out of this amount a sum of Rs. 100/- is not attachable and deducting that amount from the total salary the balance would be Rs. 600/-. Mr. Chatterjee contended that a moiety of this sum of Rs. 600/- is attachable and as the insolvency Court has attached only a sum of Rs. 60/- per month, the decree-holder appellant is entitled to attach the remaining portion of the moity, viz., Rs. 240/- per month. The lower appellate 'Court held that although in an ordinary case the decree-holder would have been entitled to attach this amount from out of the monthly salary of the judgment-debtor, it should be held, in view of the insolvency proceedings pending against the judgment-debtor that the entire salary of the insolvent has vested in the insolvency Court or the receiver as the case may be, and so no portion of the salary is available to the appellant for attachment under his decree. The lower appellate Court has relied on Sub-sections (2) and (4) of Section 28 of the Provincial Insolvency Act, 1920. Sub-sections (2) and (4) of Section 28 of the above Act run as follows :