OFFICIAL RECEIVER OF TANJORE Vs. MRVENKATARAMA IYER

JUDGEMENT

(1.) Only two points have been raised in appeal. It is contended that where rateable distribution has been ordered under Section 73 of the Civil P. C., the exception to Section 51 (1) of the Provincial Insolvency Act only applies to the amount credited in favour of the attaching decree holder and not to the amounts rate ably distributed to the other decree holders under the section. No authority is quoted and we tan find nothing in the wording of Section 51 to support such a view; nor is any reason suggested for such a differentiation. The learned Counsel for the appellant wished to refer to various English rulings dealing with Section 45 of the English Bankruptcy Act of 1883 : bat the difference between this section and Section 51 of the Indian Act are so great i bat we feel unsafe in taking them as a guide. The other contention is that the amounts lying in Court should be treated as still the money of the insolvent, which the Official Receiver tan claim for the benefit of the general body of the creditors, This contention also we feel bound to negative. The last of the orders for rateable distribution was passed more than six years before the insolvency; and respondent was only prevented from drawing out the sums of which he was entitled thereunder by reason of litigation instituted by other creditors of Nataraja Iyer which was carried up to this Court and ultimately proved infructuous. It seems to mo that from the time of the order of rateable distribution the mousy must be treated as belonging, not to the judgment-debtor, Nataraja Iyer, bat to the decrees-holder in whose favour the order was passed. Mr. Devadoss for appellant contended that the effect of a rateable distribution order is merely to allocate the money to the different suits without affecting its ownership. The latter, he says, still rests in the judgment-debtor by the sale of whose property it was allocated. I do not think this is so. The section does not speak of distribution to the credit of the different decrees, bat of distribution among the decree-holders. The latter are entitled to draw it out at will; and the judgment-debtor most certainly is not. I think the money in this case must be treated as the property of the decree-bolder, the present respondent, and that the Official Receiver could no more recover it from Court than he could recover from the respondent if it had actually been paid out to him by Court. Mr. Devadoss eventually admitted that he could not recover the money in the circumstances of the present sane if it had passed into respondent's possession, I would dismiss the appeal with costs. Odgers J.

(2.) The first point raised is on Section 51 of the Provincial Insolvency Act as to whether the proceeds of execution held by various Courts as detailed in the District Judge's judgment are "assets" realised or not. In the absence of authority the executing decree holder cannot be held to be solely entitled.

(3.) It was said there is a difference between Section 73, Civil Procedure Code and Section 51 27 C. 351 : 4, C. W. N. 610 : 14 Ind. Dec, (n. s.) Provincial Insolvency Act on this point. Mr. Davadoss points to Section 40 of the Bankruptcy Act of 1883, to show that completion of execution in England means a different thing to what it doss here, The Indian section is by no means identical with the Statute; in fact, it differs from it in many material respects and it, seams to be not only unnecessary but dangerous to hold that there may be distinction between the meaning of execution in these two sections. The point fails.