B N LANG Vs. JASVANTLAL HATHICHAND

JUDGEMENT

(1.) On September 10, 1925, an order was made in chambers on the application of the Official Assignee, in whom had vested by virtue of an order made under Section 17 of the Presidency Towns Insolvency Act, all the., estate and property of a certain insolvent Mulcband Eatanehand, that the Prothonotary should withdraw without execution the decree of the High Court in Suit No. 1755 of 1922 in favour of one Chandulal Hathibhai against the insolvent, dated June 13, 1922, which had been transmitted by this Court for execution to the Political Agent at Sadra in Mahikantha Agency on June 5, 1923. The decree-holder then filed an application that this ex-parte order should be vacated, and the Judge, after hearing arguments directed that the order should be vacated, and that the Official Assignee should pay the applicant's costs.

(2.) We cannot agree with that order. The property of an insolvent, who has been adjudicated under an order of this Court under Section 17 of the Presidency Towns Insolvency Act, vests in the Official Assignee wherever it may be situated. It is an entirely different question; with which this Court is not at present concerned, whether the Official Assignee will be able to get possession of the property so vested in him if it is situated outside British India. The fact remains that according to the law of this country in which the insolvency petition rests, all the insolvent's property belongs to the Official Assignee. But whether the property vests or not, it is perfectly clear that under Section 53 of the Act this Court was entitled, and was bound, on the application of the Official Assignee, to withdraw any attachment already levied by it on the insolvent's property. The section runs thus: 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 Official Assignee, except in respect of assets realized in the course of the execution by sale or otherwise before the date of the order of adjudication, and before ho had notice of the presentation of any insolvency petition by or against the debtor.

(3.) So that if a person is adjudicated insolvent in this Court there can be no doubt that this Court, subject to the exceptions mentioned in the section, must raise any attachment issued by itself against his property, on the application of the Official Assignee, and whether the property of the insolvent outside British India vests or not, this Court cannot allow any creditor of the insolvent to take advantage of attachment proceedings resting in this Court as against the Official Assignee.