RANGANATHA RAO Vs. ANANDA CHARIAR

JUDGEMENT

(1.) In this case it is stated on behalf of the petitioner that the order as it stands is not made against his brother, but that the Subordinate Judge intended to make it against him and that it was applied for against him though he was wrongly styled 1 defendant in his application instead of 2nd defendant. I have not rejected his petition as premature, because it appears that this mistake has been made and that all that is necessary is for the Subordinate Judge to have the necessary amendments made; and the respondent did not ask me to refuse the petitioner a hearing. It seems more satisfactory that I should dispose of the matter, both parties being willing, because if I hold the Subordinate Judge right, he can get the amendment made and review his order so as to correct the mistake, while if I hold him wrong it may be that no further proceedings will be necessary in the matter.

(2.) The petitioner is drawing a salary of Rs 60 a month. Some years ago a vesting order was made against him under Section 7 of the Indian Insolvency Act and he has since obtained his personal discharge under Section 48. The respondent is a creditor who prior to the insolvency proceedings had obtained a decree against the petitioner and was among the creditors whose claims were entered in the schedule. He now attaches the petitioner's salary in execution of his decree and the petitioner. objects.

(3.) It seems to me that the view of Farran J. in in the Matter of C.M.F. Doughee (1894) I.L.R. 19 B. 232 where he holds that salary vests in the Officiae Assignee under Section 7 is correct, and that the effect of Section 27 is not to cut down Section 7 but to require the Official Assignee, before he can obtain payment of the salary, to obtain the order of the court as to the amount which is necessary for the maintenance of the insolvent. In In re Roberts (1900) 1 Q.B. 122 the Court of Appeal held that after bankruptcy and before discharge whatever property a bankrupt acquires belongs to his trustee save only what is necessary for his support. That was a case of personal earnings, but for this purpose there seems to be no material difference between personal earnings and salary and there is nothing in Section 7 to suggest a contrary view in this country. The salary, as I understand the matter, vests in the Official Assignee, but he cannot get any of it until the court makes an order under Section 27. It was argued that the debtor has no right to object to the attachment, but no authority was cited in support of the contention and I do not know of any good reason why a debtor should not be allowed to show, if he can, tint property which was attached as his, does not belong to him but to some one else.