INDRA CHANDRA DOGAR Vs. TARACHAND DOGAR

JUDGEMENT

(1.) The appellant in this case, in execution of his decree, attached the property of his judgment -debtor, situated in Zilla Dinagepore, in January 1868, and it was sold in execution on 19th March 1868. On the 6th March the debtor was declared insolvent, and by an order of the Insolvent Court of that date his property was vested in the Official Assignee. On the 19th March the Official Assignee sent a petition to the Judge of Dinagepore, praying that the property might be released from attachment, and that any assets belonging to the insolvent might be remitted to him. The petition of the Official Assignee did not reach the Judge till after the sale of the insolvent's property had taken place; and after the expiry of the thirty days prescribed by law, the Judge confirmed the sale, and remitted the sale proceeds to the Official Assignee. The decree -holder claims these sale proceeds, on the ground that, as the property had been attached by him in execution of his decree before it was vested in the Official Assignee, he is entitled to the sale proceeds; and he supports his claim by reference to a Circular Order of the late Sudder Court of 25th August 1837, circulating an opinion of the then Advocate -General on the subject. There has been a great change in the law since 1837, and certain judgments passed by Judges on the Original Side of the High Court in Ram -persad v/s. Calachand Das (1 In. Jur. N., S., 325 and 373), have been quoted by the opposite party, to show that attachments made before judgment, though perfected by judgments, and not requiring fresh proceedings of attachment to be taken out, do not prevent possession of the attached property from being taken by the Official Assignee, should it not have been sold before that officer is appointed to the charge of the property. It is pointed out to us that the High Court of Bombay have ruled differently in Gamble v/s. Bholagir (2 Bom. H.C.R., 150) and have held that when property has been attached before judgment, and a decree obtained before the Official Assignee was appointed, the attaching creditors were entitled to be satisfied before the Official Assignee; but, though all deference is due to the opinion of the High Court of Bombay, we think the ruling of this High Court should be followed till it be shown to be erroneous.

(2.) As the attachment does not divest the debtor of the ownership on the property, we think that attachment after decree does not put a creditor in a better position than attachment previous to judgment; and we, therefore, consider the order of the Judge is correct, and dismiss this appeal with costs.