JNANENDRA KUMAR ROY Vs. AKASH CHANDRA CHOWDHURI

JUDGEMENT

(1.) This is an appeal against an order passed by the District Judge of Sylhet in exercise of his insolvency jurisdiction on 26 May 1937. The facts are simple. The appellant before us who is the debtor presented an application for insolvency on 21 December 1936. On 3 April 1937, he was adjudicated an insolvent and a pleader named Md. Neser Ali was appointed receiver. There was a direction on the insolvent to deliver all the assets stated in his petition to the receiver forthwith and also to pay Rs. 60 each month out of his salary to the receiver. On 19th May 1937 the appellant filed a petition for reconsideration of this order basing his case upon the Amending Act 9 of 1937 which introduced certain changes in Section 60, Civil P.C. His contention was that as under Clause (h), Section 60 the wages of labourers were exempted from attachment to the extent of first hundred rupees and one-half of the remainder, he could not be compelled to pay more than rupees five a month which was half of rupees ten which remained after the first hundred of his salary. This petition was rejected on 26 May 1937 and against this order, the present appeal has been preferred. Mr. Chatterjee who has appeared for the appellant has reiterated the contention which his client put forward before the District Judge and has argued that under Section 28, Provincial Insolvency Act, the property of the insolvent which is exempted by Civil P. C. from liability to attachment and sale in execution of a decree cannot rank as assets of the insolvent and hence cannot vest in the receiver in law. The proposition enunciated by Mr. Chatterjee is sound but in our opinion it does not help him in the present case. The test to determine as to whether this property was the property of the insolvent or not would be as to whether or not it was liable to be attached and sold in execution of a decree at the date when the attachment order was passed. In other words we are to imagine that a decree was in existence at the date when the adjudication order was made and if in execution of that decree this property was not liable to be attached or sold, it was exempted under Sub-section (5) of Section 28, Provincial Insolvency Act.

(2.) So far as the Amending Act 9 of 1937 is concerned, to which our attention has been drawn by Mr. Chatterjee, it lays down in Section 3 an important provision providing that the amendments made by Section 2 [which introduced Clause (h) in the section] shall not have effect in respect of any proceedings arising out of any suit instituted before 1 June 1937. We are in agreement with Mr. Chatterjee in holding that the insolvency case cannot be described as a suit or any proceeding arising out of it. But that really is not material. What is necessary for us to consider is this, whether or not under the provision of Section 3 of this Amending Act 9 of 1937 a decree against the debtor in existence on 3 April 1937 could be executed by attaching a sum of Rs. 60 out of the salary of Rs. 110 enjoyed by him. We are of opinion that Section 3 definitely lays down that this amended provision would not have any operation in respect of any suit or any proceeding arising .out of the same when the suit itself has commenced prior to 1 June 1937. Ex hypothesi, the decree in existence on 3 April 1937 could not have been passed in a suit which was commenced later than 1 June 1937. Under the circumstances, we are of opinion that the view taken by the [District Judge is correct and the appeal [must stand dismissed. We make no order as to costs in this appeal. Biswas, J.

(3.) I agree. The Judge in insolvency made a very reasonable order in the case. It was that the insolvent should pay into the hands of the receiver in insolvency a sum of Rs. 60 out of his pay of Rs. 110 each month. The insolvent encouraged probably by the ever-increasing indulgence to debtors, which seems to be the policy of the Legislature now, applied for re-consideration of the order, claiming that under the new Amending Act 9 of 1937 the maximum out of his salary which could vest in the receiver was only Rs. 5. His contention was that he was entitled to the benefit of this amending legislation. What property vests or does not vest in the receiver in insolvency on the making of an order of adjudication is laid down in Section 28, Provincial Insolvency Act. Sub-section (5) of this section provides that the property of the insolvent: which vests in the receiver under this section shall not include any property which is exempted by the Civil Procedure Code, 1908, or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree.