SEWDUT ROY Vs. SREE CANTO MAITY

JUDGEMENT

(1.) This suit was instituted on the 22 August, 1905. The plaintiff applied for attachment before judgment. On the 30 August an order was made in default of security. On the 2nd September the goods which consisted of castor seeds and other articles were actually attached. On the 13 September the goods as perishable articles were at the instance of the plaintiff ordered to be sold, under the provisions of Secs.269 and 486 of the Code. The sale proceeds were thereafter and on the 2 October, paid into Court. On the 23 November the party, who opposes this application, obtained a decree in another suit. Then on the 18th December the plaintiff obtained a decree in this suit. Then on the 5 January 1906 the opposite party attached the moneys in Court under the provisions of Section 272 of the Code as moneys payable to the defendant. Thereafter and on the 24 January 1906 the plaintiffs gave notice of this application in which they ask that they may be paid the sum in Court representing the proceeds of sale of the property attached before judgment in part satisfaction of their decree, which was for a larger amount or in the alternative for rateable distribution under Section 295. The opposite party is willing that an order should go in this alternative form, but the plaintiff's learned Counsel presses his claim to be paid the whole fund to the exclusion of the opposite party, the other attaching creditor.

(2.) The contention on behalf of the plaintiff is this. It is said that the assets were realised when the sale proceeds were paid into Court on the 2 October, 1905; that the opposite party did not apply for execution prior to such realization; and that therefore they are not entitled to have a rateable distribution. It maybe conceded that the assets were "realised" which word simply implies in this connection that the property has been converted into a form, namely money, which renders it available for immediate distribution. But realization is not sufficient. It must be a realization in execution of a decree. It is obvious that there was no such realization in this case on the 2 October, 1905. The goods were then sold before there was any decree which could be executed and were so sold simply because they were of a perishable nature. It is then said that the present application is in substance one for the execution of the decree, that on such application it is not necessary to reattach the property, and that upon such application the attachment becomes one in execution and dates back to the time, when it was made before decree. As a consequence of this fiction the subsequent sale on the 2nd October 1905 must, it is argued, be taken to be a realization of assets in execution. In my opinion there is no ground for such a contention and no authority has been put before me in support of it.

(3.) The particular case before me does not appear to have been provided for by the Code, but must be disposed of on the principles underlying the provisions of the Code, which bear on the matter before me and as conformably as may be to those provisions.