B CHENGALROYA CHETTY AND W RAGAVULU CHETTY ADJUDICATED INSOLVENTS YAKALUR GOPALA CHETTY Vs. OFFICIAL ASSIGNEE OF MADRAS

JUDGEMENT

(1.) This is an appeal from an order by the Commissioner in Insolvency directing that a sum of Rs. 900 and odd, now in the hands of the appellant, be paid over to the Official Assignee of the Estate of the two insolvents. The facts are these: The judgment-creditor, for whom Mr. Napier appeared, obtained a decree in: the Presidency Small Cause Court against the insolvents and on the 4 June 1908, an interim order of attachment; was made with regard to certain monies which were owing by a Mr. Lewin, who carried oil business as the Madras Sales Agency Co., to the insolvents. On June 10 the vesting order was made. On June 25th, the order for attachment which had been obtained, by the judgment-creditor was made absolute. On June 30th, an order was made that the money owing by Mr. Lewin to the insolvents should be paid into Court. On the 8 August, there was an application for execution. There was a further order on an application made to the Chief Judge with reference to the payment out of this money. The order was in these terms: "I think notice of this application must be given to the Official Assignee Notice to be given by plaintiff's Vakil to Official Assignee for 25 August 1908beforethe Chief Court." Then on the 25th, according to the note of the learned Judge, Mr. Rangasawmy Iyengar appeared for the plaintiff and Mr. Wilson appeared for the Official Assignee. The case of Randall V/s. Lithgow 12 Q.B.D. 525 : 53 L.J.Q.B. 518 : 50 L.T. 687 : 32 W.R. 794 was cited by the Vakil for the plaintiff. The application was adjourned, the order of the Court being that the plaintiff's Vakil should give notice of the adjournment to the garnishee. The matter came before the Court of Small Causes again on the 28 and on that date, this is the note of the learned Judge: "Wilson for Official Assignee withdraws his objection to payment out of Court. Order for payment to the plaintiff of the sum brought into Court by the garnishee and satisfaction of the decree to be entered up in full". In pursuance of that order the money was paid out to the judgment-creditor, and he entered, up satisfaction in respect of the judgment-debt.

(2.) Now the question is, is the judgment-creditor, in the events which have happened, entitled to retain this sum as against the Official Assignee? As has been pointed out, the vesting order was on the 10 June, i.e., after the making of the interim order of attachment and before the interim order was made absolute. Now I do not think that Mr. Napier contended that apart from what took place on August 28th, the judgment-creditor has any title to this money as against the Official Assignee as representing the estate. I think it is now settled that, even if the order for attachment is made absolute before the vesting order, if a contest arises between the creditor who has obtained the order for attachment and the Official Assignee under a vesting order obtained subsequent to the order for attachment, the title of the Official Assignee must prevail. However, we have not to consider this question here, because the vesting order was made before the order for attachment was made absolute.

(3.) I think I may say it is conceded that if it had not been for Mr. Wilson's consent to the money being paid out on the 28 August, there would have been no question as to the right of the Official Assignee to recover this money from the judgment-creditor for the benefit of the estate. The application is against the judgment-creditor and is made in the insolvency proceedings and it is made under the provisions of Section 26. Mr. Napier suggested that as the Official Assignee is seeking to recover money, the section did not apply since Property does not include Money . That contention did not commend itself to us at the time and Mr. Odgers this morning has called our attention to a decision in the matter of Umbica Nundun Biswas 3 C. 434, which is a decision under Section 26, where it was held that Property did include Money . Although the section says "Property of the insolvent," those words would cover cases like this where the claim is put forward not by the insolvent because he is an insolvent, but by the Official Assignee in whom the property is vested.