W E HOWATSON Vs. WEDURRANT

JUDGEMENT

(1.) The question in this rule is as to the effect of the inso(sic). the defendant under the vesting order of the 1 of February 1899.(sic) previous order made in this suit on the 8 of September 1893.

(2.) The plaintiff is the creditor of the defendant. He obtained a decree in this suit, and after various proceedings he obtained on the 8 of September 1898, an order under Section 295 of the Civil Procedure Code, whereby, after directing certain payments to be made out of the fund in Court representing realizations made in execution of decrees, it was directed that the Registrar should proceed to enquire and report as to who were the creditors of the judgment- debtor entitled to payment out of the fund in Court, and that for the purpose of that enquiry the Registrar was to be at liberty to include in his report any further sum or sums of money which may be paid into Court to the credit of this suit up to the date of such report, and then the order proceeded to direct that the balance of the fund, after payment of the amounts already mentioned, be applied in payment rateably to persons found by the report entitled to a distributive share therein in the proportion indicated in the report. Now that 13 an order of a character frequently made by this Court under Section 295, and the object is to provide for rateable distribution among such of the creditors of the judgment-debtor as shall be entitled to payment under Section 295. It has certainly always been the practice of this Court to regard an order of this sort as an order, not merely for an enquiry, but also for payment of the sums found payable upon the enquiry. I think that is the way in which the order should be read. But so reading the order, it affects only interests existing at the time. But the insolvency of the defendant introduces a new interest and a different question arises.

(3.) Now upon the insolvency of the defendant, the whole estate of the insolvent vested under Section 4 of the Insolvent Act in the Official Assignee, and the Official Assignee became empowered to administer the estate of the insolvent for the benefit of the general body of creditors. The estate so to be administered is the estate of the insolvent subject to any rights, equitable or otherwise, which were existing at the date of the insolvency in favour of third persons. I think, therefore, that the operation of the order of the 8 September must be restricted to the period previous to the date of the vesting order.