W C MCINTOSH Vs. BIDHU BHUSAN SEN

JUDGEMENT

(1.) THIS is a claim case under Order XXI, Rule 58, in which the lower Court has dismissed the petition of claim. A Rule has been granted calling on the opposite party to show cause why the Subordinate Judge should not be directed to allow the claim of the petitioner on the facts found; to this Rule a clause has been added calling on the opposite party to show cause why the attachment obtained by him should not be set aside as being made without jurisdiction owing to a previous adjudication in insolvency made on the 19th September 1910. The facts of the case as found are as follows- On the 11th September 1909, a husband and wife, Mr. and Mrs. Sophianopulous, sold certain property to Mr. Philipopulous. THIS sale was not a bona fide one, which we understand to mean that it was entered into by Sophianopulous and Philipopulous for the purpose of shielding the property from the creditors of the former. On the 25th June 1910, Philipopulous sold the property to the claimant, who took possession and retained it till the attachment. THIS sale was a collusive one, being apparently a similar transaction to the first. Philipopulous was adjudicated insolvent on the 19th September 1910, a fact which curiously enough is not mentioned in the judgment of the Court below, though from the terms of the Judge s order we think he must have had it in his mind. The property was attached on the 7th May 1911; and it is against this attachment that the present claim is made. Under Order XXI, Rule 60, the Court was bound to make an order releasing the property if it was satisfied that the property, when attached, was not in the possession of Sophianopulous or of some person in trust for him, Under Rule 61 if the Court was satisfied that the property was in possession of Sophianopulous or of some other person "in trust for him, it was bound to disallow the claim. There is no question of possession by Sophianopulous, and the only question arising under these two rules is whether the property was in the possession of the claimant in trust for Sophianopulous. The findings show that the claimant was in possession of the property under a title which neither he nor Sophianopulous intended should be acted on as between themselves, and that he was in possession for the benefit of Sophianopulous and to defraud his creditors. We are of opinion that, looking at the scope and purpose of the rules in question, it is not necessary in order to defeat the claim to show that the trust is one capable of enforcement by law. Accordingly, we hold that the claimant was in possession in trust for Sophianopulous: and the claim was, therefore, rightly dismissed. As to the second part of the Rule, it may be that the adjudication vested the property in dispute in the Official Assignee: but he has not so far made any objection to the attachment, though he has done nothing that can be taken as admitting its validity as against him. We see no reason why on revision we should allow the claimant to take advantage of a right in another which has not yet been asserted.

(2.) THE Rule is, therefore, discharged with costs, the hearing-fee being assessed at three gold mohurs.