The Opposite Party in this Rule instituted a suit for recovery of money on a hatchitta against one Doyachand, in the Court of the Munsif of Maldah. He applied for attachment before judgment of certain moveable properties of the Defendant. The Court directed an attachment, but ordered that the properties were to be released from attachment on the Defendants paying Rs. 500 as cash security. The Defendant paid Rs. 500 to the peon who went to attach the properties, which were accordingly released and the money was deposited in Court by the peon.
Subsequently another creditor of the said Doyachand applied to the District Judge of Murshidabad to have him adjudged an insolvent, under the provisions of the Provincial Insolvency Act and the Petitioner was appointed interim Receiver of his estate. The Petitioner thereupon applied to the Munsif of Maldah for payment of the said sum of Rs. 500 to him and for stopping payment of the amount to any rival claimant. The Munsif on the 11th April 1911, stopped payment of the amount until further orders of the Court.
Doyachand was adjudged an insolvent on the 25th May 1911 by the District Judge of Murshidabad, and the Petitioner was appointed Receiver of his estate under sec. 18 of the Provincial Insolvency Act. The Petitioner then applied for payment to him of the said sum of Rs. 500. The Opposite Party obtained a decree in his suit in the Maldah Court on the 20th July 1914, and he objected to the application of the Petitioner.
The learned Munsif held that as the money was realised before the order of adjudication was made, the Receiver had no priority over the Opposite Party and accordingly ordered the amount to be paid over to the latter. The Petitioner thereupon obtained this Rule for setting aside the said order.
We are of opinion that this Rule must be made absolute. The Opposite Party acquired no lien or charge upon the money deposited as security for getting the attachment before judgment withdrawn. It is contended however on behalf of the Opposite Party that the money was paid to his credit and was in fact a part payment of the debt for the recovery of which he had instituted the suit, provided it was decided in his favour, and that the money having been realised before the order of adjudication was made, the Receiver had no right to the same. This argument is founded upon the fact that in the chalan by which the sum of Rs. 500 was deposited in Court, by the peon, it was stated that it was deposited to the credit of the Opposite Party. But the order of the Court was that the attachment on the goods was to be removed on the Defendants paying Rs. 500 as cash security. The peon thereupon could not by any statement of his convert the security to a payment to the credit of the Opposite Party, specially at a time when the suit was not decided. It is next contended that the Receiver having been added as a party to the suit was precluded from setting up any right as Receiver to the money. But the decree was only for money, and did not create any charge upon the money deposited and although the. Receiver was a party to the suit there was no decision as to the respective rights of the Receiver and the Opposite Party, to the money which was in deposit in Court as security, nor could there be any such decision.
The money not having been realised in execution of a decree prior to the adjudication order, sec. 34 of Act I of 1907 does not apply.
We are of opinion that the order of the Munsif directing the money to be paid over to the Opposite Party is erroneous. The order, is accordingly set aside, and the Opposite Party is directed to refund the money to the Petitioner.
The Petitioner will yet his costs one gold mohur.
Rule No. 1120.
The order that we have just now delivered will govern this Rule which is also made absolute with costs one gold mohur.