RAGHUNATH DAS Vs. SUNDAR DAS KHETRI

JUDGEMENT

(1.) The action in which this appeal arises is an action for the recovery of a leaseho colliery. The plaintiffs (the present appellants), claimed title to the property under the Official Assignee in the solvency of the lessees. The order vesting the property in such Official Assignee was made under the Insolvent Debtors (India) Act, 1848, on the 8th September 1904. At the date of this order the colliery had been attached in execution case No. 303 of 1904, in which the lessees were the judgment debtors and the defendants (the present respondents) were the judgment creditors, and an order had been obtained for the sale of the interest therein of the judgment debtors. Counsel for the respondents admitted that attachment in execution of a money decree followed by such an order for sale does not confer on the judgment creditor any charge on the land (see Sarkics v. Mussumat Bandho Baee (1869) 1 N.W.P.H.C.R. 172 (A.C.). An attachment prevents and avoids any private alienation, but does not invalidate an alienation by operation of law such as is effected by a vesting order under the Act of 1848, and an order for sale, though it binds the parties, does not confer title.

(2.) It follows that under the order of the 8th September 1904, the property vested in the Official Assignee free from any charge in favour of the judgment creditors. The Official Assignee in due course, by order of the Court having jurisdiction in the insolvency, sold the property, and the appellants derive title through the purchaser. Their title is thus prima facie a good and valid title, but it is disputed by the respondents under the following circumstances.

(3.) On the 12th September 1901 the Judge in the execution proceedings stayed the sale therein directed until further order. This was the proper and indeed tli only thing he could do for the judgment debtors had no longer any interest which could be sold. Further, if, as was no doubt the case, the judgment debt was included in the schedule filed by the insolvents under the Act, their Lordships are of opinion that he was bound to stay the sale under Section 49 of the Act. At any rate the executor could not proceed until the Official Assignee had been properly brought before the Court, and an order binding on him had been obtained. In their Lordships opinion this could only be done by obtaining an order for the issue of, and by serving him with a notice under Section 248 of the Civil Code of 1882, which was the Code then in force. It was suggested in argument that he might have been made a party to the proceedings either under Section 32 or under Section 372 of the Code, but even if these sections are applicable after final decree, as to which there is considerable doubt (see Goodall v. The Mussoorie Bank, Limited (1887) I.L.R. 10 All. 97 no proceedings seem to have been taken thereunder. What the judgment creditors did was this: they applied to the Judge in the execution case for an order, and on the 30th September 1904, and again on the third November, obtained an order for the issue and service on the Official Assignee of a notice calling upon him to show cause why he should not be substituted in the suit for the judgment debtors. This was not a proper notice under the 248th section. A notice under that section should have called upon the Official Assignee to show cause why the decree should not be executed against him. Had the Official Assignee been served with such a notice, it is at least probable that he would, as in their Lordships opinion he certainly could, have shown good cause why the decree should not be executed, the property having under the Act and vesting order been transferred to him for the benefit of the creditors of the insolvent generally. It is possible that the notice might be upheld as a proper notice preliminary to adding the Official Assignee as a party under the 32nd section, if that section were applicable, but in order to bind a party added under the 32nd section, he has, after being added, to be served with a summons to appear and answer, and it is not suggested that any such summons was served. Similarly, it is not suggested that any order to carry on proceedings was obtained under the 372nd section.