A.B Miller v. Lakhimoni Debi Decree-Holder, .

Maclean, C.J:— Two points arise upon this appeal the facts, stated shortly, are these. In 1895, the decree-holder, in a suit to enforce his mortgage, attached certain immoveable property. In 1898 one of the judgment-debtors was declared an insolvent. On the 6th of May 1898 a vesting order was duly made in the insolvency proceedings. Subsequently an order for sale of the property attached was made, and on the 3rd of October 1898, the Official Assignee intervened, and on the 18th of February 1899, the First Subordinate Judge of the 24-Pergunnahs passed the order which is the subject of the present appeal. By that order he held that the decree-holder had priority in respect of the attached property over the Official Assignee the latter has appealed. A preliminary objection is taken that no appeal lies in this case, on the ground that the Appellant, the Official Assignee, is not the “representative” of the judgment-debtor within the meaning of cl. (c) of sec. 244 of the Code of Civil Procedure the point is not free from difficulty. There are authorities in the Allahabad and Bombay High Courts, the first Kashi Prasad v. Miller, and the second, where, however, the point is only incidentally touched upon, Sardarmal Jagonath v. Aranvayal which are against the view of the Official Assignee being the “representative” within the meaning of the section. If these authorities be well-founded, no appeal lies to this Court.

It is not necessary for the purposes of to-day to decide the point, but the inclination of my opinion is against the above view. It seems to be a somewhat narrow construction to place on the term “representative,” looking at the position in which the Assignee stands to the insolvent the Official Assignee no doubt represents in one sense the interests of the judgment-debtor's creditors, generally, but can it be justly said that he does not also represent the interests of the judgment-debtor himself. For instance, to the extent of any surplus remaining after paying the creditor, the Official Assignee represents the debtor in respect of that surplus.

Upon the merits, it looks, at first sight as if there were a conflict between two Full Bench decisions, viz., the one Anund Chunder Pal v. Ptmchoo Lall Soobalah in which it was distinctly held that the Official Assignee can only take the interest which the judgment-debtor had, which in this case would be an interest subject to the rights of the attaching creditors, and the other Shib Kristo Shaha Chowdhry v. A.B Miller. But there is this distinction between the last-mentioned case and the present one; in the former the attachment was before judgment, here it is after decree. But apart from this distinction, which, perhaps, in principle, is not very material, my view is that the law, as propounded in the earlier case, ought to be followed on the short ground that the Official Assignee stands in the shoes of the insolvent, and that lie takes the property subject to any equities which are good as against the latter. In other words the Official Assignee cannot be in a better position than the insolvent.

The appeal therefore fails and must be dismissed with costs, three gold mohurs the record may be sent down as early as possible.

Banerjee, J.:— I am of the same opinion. There are two questions arising for determination in this case, first, whether the Official Assignee is the representative of the insolvent judgment-debtor within the meaning of sec. 244 of the Code of Civil Procedure, and the point to be determined in this case is, consequently, one under cl. (c) of that section so as to make the order of the Court below appealable, and, second, whether the effect of a vesting order made under the Insolvency Act, 11 and 12 Vic, c. 21, has the effect of giving the Official Assignee priority over the claim of a judgment-creditor in respect of property attached at his instance previous to the passing of such order.

Upon the first question I may say that the matter is not free from doubt and difficulty the question whether the point in this case comes under cl. (c) of sec. 244 of the Code of Civil Procedure has to be determined with reference to the nature of the objection raised by the Official Assignee. His objection here was, that the property in dispute, though belonging to the judgment-debtor was not liable to be sold in execution of the decree obtained by the Respondent against him by reason of the order passed in the insolvency proceedings. So far as that objection goes, the Official Assignee represents not so much the judgment-debtor as the creditors taken as a body. But though that is so, it must be borne in mind that if the Official Assignee succeeds in defeating the present application for execution of decree, the property released from attachment will go to augment the assets of the insolvent for distribution among his creditors, and may help to secure the final discharge of the insolvent under sec. 59 of the Act. And I may add that the Official Assignee so far represents the judgment-debtor, that all the property that the judgment-debtor may have is vested in him. He may also, under sec. 29 of the Statute, institute and defend actions and suits on behalf of the insolvent. On the whole, therefore, I agree with the learned Chief Justice in holding that the Official Assignee is a representative of the insolvent judgment-debtor within the meaning of sec. 244 of the Code and that the order appealed against is therefore appealable.

On the second point raised in this case, I need only say that it is governed by the decision of the Full Bench in the case of Anund Chunder Pal v. Punchoo Lall Soobalah and that the case of Shib Krisio Shaha Chowdhry v. A.B Miller(4)* is distinguishable from the present, as the attachment in that case was one before judgment and not in execution of a decree, as it was in this case.

S.C.S

Appeal dismissed.