RAMRAO Vs. WASUDEO

JUDGEMENT

(1.) 1. Admittedly, in this case a Receiver was appointed as far back as 1st May 1916, in execution of a money decree and he was placed in possession of four occupancy fields on 3rd February 1916. From that date payments had been made to the present appellant towards the satisfaction of his decree. When the respondent applied to be declared as insolvent in 1924, the appellant was the only creditor shown in the application. The appellant, however, did not want to be shown as a scheduled creditor and claimed a prior right under his attachment.

(2.) THE appellant's position is that a lien was created by the attachment in his favour and that he was, to all intents and purposes, a secured creditor and that the order of the insolvency Court discharging the respondent could not affect the appointment of the Receiver who must continue until the appellant's decree is fully satisfied. I do not think the appellant's position in this connexion is a correct one. The effect of Section 44(2), Insolvency Act, is that the order of discharge, dated 23rd December 1926, released the insolvent from all debts provable under the Insolvency Act. Turning to Section 34, Sub-Section (2), Insolvency Act, there can be no question but that, during the insolvency proceedings, the balance of the claim due to the present appellant under his decree was a debt provable under the Act. That the appellant deliberately chose not to have it proved is quite another matter and it seems to me, in these circumstances, that automatically the respondent was released from the balance of the debt in question which clearly could not come under either of the four classes mentioned in Sub-section (1) of Section 44 of the Act.

(3.) HOLDING as I do, therefore, that the debt was wiped out by the order of discharge passed by the insolvency Court ex nutura rei the appointment of the Receiver lapses. In those circumstances the orders of the lower Courts are correct. The appeal accordingly fails and is dismissed. Appellant must bear respondent's costs in this Court. I fix Rs. 20 as pleader's fees. Costs in the lower Courts as already ordered.