H W PARMER Vs. CAWASJEE

JUDGEMENT

(1.) SECOND Appeals Nos. 852 and 1090 are two appeals arising out of the same execution proceedings, SECOND Appeals Nos. 853 and 1089 arise out of similar execution proceedings. The points which arise in these two sets of appeals are the same. Two decree-holders in execution of their decrees against the same person applied for the attachment of certain moneys. In each case the judgment-debtor raised the same objection and in each case the Court passed the same order. Both parties in each case have appealed. The facts are briefly as follows: The judgment- debtor was a Railway servant to whom a certain sum of money was due from the Provident Fund of the Railway. His services had apparently come to an end and the money was payable to him at Bareilly. He removed himself for his own purposes to Simla and at his request the Railway authorities paid the money into the Post Office so that it might be sent to him by money order to Simla. Out of the sum due to him was deducted the commission payable to the Post Office. The decree-holders in execution of their decrees attached this money while it was in the hands of the Post Office and the money is now in the hands of the Court. It was not paid to the judgment-debtor at Simla. The Court below has held that the attachment is a good one; but directed that the money should be retained in Court and not paid to the decree-holders pending the decision of an application which the judgment-debtor had made at Simla to be declared an insolvent. In so far as the lower Court has held that the attachment is a good one, the judgment-debtor has appealed; in so far as the lower Court has directed that the money should be retained in Court and not paid to the decree-holders pending the disposal of the application by the judgment-debtor to be declared an insolvent, the decree holder in each case has appealed. It is conceded that so long as the money was in the hands of the Railway it could not be attached in execution of the decree. The sole question, therefore, for decision is whether the Post Office while it held the money was the agent of the Railway Company or the agent of the judgment-debtor. It is admitted that legally the judgment-debtor could not demand payment of the sum by the Railway to him at any place other than Bareilly. Furthermore it is a fact that the money was sent by the Railway authorities through the Post Office at the request of the judgment debtor himself. It seems to me that there can be no doubt in these circumstances that the Post Office was acting as agent of the judgment-debtor and not of the Railway company and that the lower Court s decision that the attachment was a good attachment, is a correct decision. Under the postal roles in force in India, the gender of a postal article can recall it before delivery without reference to the consent of the addressee Clause 18 of the Post Office Guide for April 916). Similarly "the remitter of a money order, which has not been paid, may stop payment and require that the money be repaid to himself" (clause 268, ibid). In the face of these rules it is difficult to say how the Postal Department, can be regarded as the agent of the addressee of a postal article or the payee of a money order--Ed. In regard to the order of the Court below directing the money to be retained in Court it is equally clear that that order is bad. The judgment-debtor had not, and I am informed has not yet, been adjudged an insolvent. His application appears to be still pending. No Receiver has yet been appointed. It is clear, therefore that the Court has no power to retain the money in its hands but should dispose of it at once according to law. Section 84 of the Provincial Insolvency Act lays it down that where execution of a decree has issued against the property of a debtor no person shall be entitled to the benefit of the execution against the Receiver except in respect of assets realized in the course of the execution by sale or otherwise before the date of the order of adjudication. In the present case no order of adjudication has yet been passed, so that it is clear that the order of the Court below directing that the money should be retained in Court is wrong. The result, therefore, is that the Appeals Nos. 1089 and 1090 will stand dismissed with coats and in Appeal 1090 those costs will include fees in this Court on the higher scale. Appeal No. 852 is allowed and the order of the Court below, in so far as it directs that the money should be retained in Court and not paid to the decree-holder until the decision of the judgment- debtor s application for insolvency, is set aside. The appellant will have his costs in all Courts. Similarly Appeal No. 853 is allowed and the order of the Court below directing retention of the money in Court until the disposal of the insolvency petition is set aside with costs in all Courts.