GOURGOPAL DE SARKAR Vs. KAMALKALIKA DATTA

JUDGEMENT

(1.) The history of the circumstances which have occasioned this application is set out in detail in the applicant's petition, and there is no need to repeat it. The question for decision concerns the effect of the preliminary decree made on 21 July 1933, in suit No. 2442 of 1932 (Gourgopal De Sarkar V/s. Mrs. Kamalkalika Datta) filed by the plaintiff on behalf of himself and the other creditors of Nirmal Datta, deceased. At the date of the decree the applicant had attached the insurance money lying with the insurance company and payable to the heirs of Nirmal Datta, in execution of a decree for Rs. 1,883-0-3 made by the Court of Small Causes on 9 January 1933, the actual date of attachment being 19 July 1933. The plaintiff in suit No. 1916 of 1932 (Narendranath Pal V/s. Mrs. Kamalkalika Datta) had served the insurance company with a garnishee notice for Rs. 4,500, being the amount of his decree in that suit and his estimated costs. On 11 July 1933, the moveable property of the garnishee proceedings directing payment of the entire policy money (Rs. 15,000) to the Sheriff.

(2.) On 11 July 1933, the moveable property of the insurance company was attached by the Sheriff at the instance of Narendra Pal. On 12 July 1933, this attachment was set aside on the company's undertaking to carry out the order of 27 July 1933. Such being the facts, it appears to me that, when the administration decree was made, all the attaching creditors stood on the same footing and that none of them had acquired any interest in the insurance money. The observations of the Judicial Committee in the recent case of Anattfpadmanabhaswami V/s. Official Receiver of Secunderabad AIR 1933 PC 134 certainly cannot have the effect of overruling the decisions which lay down this principle, and by which I am bound.

(3.) In my opinion, the position is not affected by anything that has happened subsequently to the administration decree. Further, I think that the attachment by the High Court and the Small Cause Court stand on the same footing, and the fact that the Small Cause Court decrees have not been transferred to the High Court, and that the money is now lying in the High Court is of no consequence. This seems to be the effect of Clark V/s. Alexander (1893) 21 Cal 200 which has been followed by the High Court of Burma in Kwai TongKee V/s. Lim Chaung Ghee AIR 1928 Rang 157. In other words Section 73, Civil P. C, must be read subject to Section 63 of the same Code. As to the general effect of the administration decree, the circumstances seem to me to be parallel to those in Soobul Chunder Law V/s. Russick Lall Mitter (1888)15 Cal 202 and I therefore consider that, by reason of the provisions of Order 20, Rule 13, which reproduce those of Section 213 of the Code of 1882, the applicant's contentions are sound.