MOHAMMAD SHARIF Vs. RADHA MOHAN

JUDGEMENT

(1.) This is an appeal from the order of the District Judge in an insolvency matter, dated the 8th March 1918.

(2.) One Batuk Prasad obtained a decree for Rs. 6,449.3.9 against the debtors who were subsequently adjudicated insolvents. This decree was obtained in the Court of the Subordinate Judge of Banares on the 27th June 1912. The debtors had obtained a decree in the Court of the Subordinate Judge of Jaunpur in Suit No. 92 of 1914. The decree was attached by Batuk Prasad in 1914. On the 7th of August 1914 a petition was filed in insolvency against the judgment debtors. On the 4th March 1915 an interim Receiver was appointed. On the 11th May 1915 the money due under the decree was deposited in the Court of Jaunpur to the credit of the attaching decree-bolder, who on the 19th May 1915 applied to that Court for payment out to him, without giving notice to the Receiver. On the 7th of July the creditor obtained an order for payment and on the 10th July 1915, Rs. 1,984 1 were raid cut to him leaving Rs. 2,699.0 11 of the amount attached unrealized. A turner sum of Rs. 16910 0 was paid out to him in respect of a decree in a Suit No. 250 of 1912 in the Court of Munsif of Jaunpur City, making a total of Rs. 2.097 14 1 realized in all. On the 3rd of September 1915 the debtors were adjudicated insolvents, and on some date in November 1917 Batuk Prasad assigned his rights to Mohammad Sharif, the present appellant. Batuk Prasad tendered a proof of his claim against the estate, founded upon his decree, on the 20th November 1915 without any account or any affidavit in sup-port. He alleged that he had transferred his decree to the appellant. The actual date of this transfer is not clear upon the evidence before us. It is possible that an agreement to transfer had been entered into, and that it was subsequently completed by a formal transfer. But this point is not material, as the fact of the assignment is not denied and nothing turns upon it. It was in any ease subsequent to the realization already mentioned, and to the adjudication. On the 6th February 1918 the appellant served a petition upon the Official Receiver claiming to prove for the balance of the decretal amount, and supported it by an affidavit, which appears to be the only matter which was before the District Judge at the hearing in March, by way of evidence, except so far as other facts alleged before him were treated by both parties as common ground, and not disputed. The procedure adopted seems to have been irregular and informal, and somewhat slovenly. The creditor s duty on receiving notice from the Receiver of the rejection of his proof, if he eyer received such notice, was to appeal to the Judge against such rejection. However, the Receiver seems to have filed two lists, List I purporting to be a schedule of creditors who claimed to prove and list II a list of creditors amongst whom the Receiver asked for an order sanctioning the distribution of a seven per cent. dividend. Together with these lists he also filed a report asking for sanction of the claims in list I, for sanction of the distribution proposed in list II, and for disposal of the application of Mohammad Sharif, whose claim he had rejected. For the grounds on which he had rejected the claim he referred to a note made on list I, objecting that Batuk Prasad had filed neither affidavit nor account, that he had transferred his decree to the appellant, that he, the Receiver, was ignorant of the amount which had been realized and that certain creditors raised the question that there were other co- judgment debtors with the insolvents. The bearing of this allegation upon the liability of the insolvents, or their estates, for the amount of the decree against them and the availability of their decree which had been attached is not apparent, and the point was either not pressed upon the learned Judge, or failed to impress him.

(3.) In this informal manner, the proof of the appellant came before the District Judge for adjudication. The claims in list I and the distribution proposed by list II were sanctioned. Upon the claims of Mohammad Sharif the following order was made: "Whatever they may have received in satisfaction of their decree against the insolvents should be paid to the Receiver, on doing this the applicant may be allowed to rank for rateable distribution along with other creditors of the insolvent."