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1870

MILAW.

to a suit cannot be affected by a decree pronounced in it. In NGA THA YA the present case, the subject of the suit is for an account and MU KHAN partition of the estate of Nga Tha. The defendant says that,

as to certain timber, part of that estate, he has sold and duly accounted for it. The plaintiff says that he has misappropriated this timber, and is bound to account for its value. I think that the possession of the timber, and the claim to have accounted for it, constitute a sufficient interest in the subject matter of the suit to justify the Recorder in adding him as a party under section 73.

But even if that were not so, if the 73rd section is not to receive the construction which I would put upon it, the result is this :—The defendant by an irregular order has been made a party to the suit; he has been summoned, made his answer, and after full trial, a decision has been pronounced against him.

If there was any error in making him a party to the suit at the stage in which he came into it, section 350 would probably prevent us from saying that the decree should be reversed on the ground of such irregularity.

Appeal dismissed.

Attorneys for the appellant: Messrs. Rogers and Remfry.

[ORIGINAL CIVIL.]

1870 March 23.

Before Mr. Justice Markby.
SRIMATI SARASWATI DEBI AND ANOTHER 0. NABADWIP

CHANDRA GOSAIN.
Redemption, Equity of-Sale in Execution of Decree-Act VIII of 1859, s. 271.

Under Act VIII of 1859, an equity of redemption can be sold in execution of a decree.

In this case the plaintiffs obtained a decree against the defendant, on the 30th January 1870, and sued out a prohibitory order restraining the defendant from alienating certain property in Calcutta. The property so attached was under mortgage to one Anand Lal Das. Soon after the attachment, the plaintiffs’ attorney, Baboo Jaya Krishna Gangooly, applied for the sale of the defendant's equity of redemption in the property. MARKBY, J., thought that, after the decision of PHEAR, J., in Brajanath

1870

SRIMATI SARASWATI

DEBI

0. NABADWIP CHANDRA Gosain.

Kundu Chowdry v. S. M. Govindmani Dasi (1), he could not grant the order for sale as of course.

Mr. Woodroffe now renewed the application. In Brajanath Kundu Chowdry v. S. M. Govindmani Dasi (1), Mr. Justice Phear expressly guards himself from deciding whether or not the attachment sections of Act VIII apply to an equity of redemption. It is said that Mr. Justice Norman, on one occasion, formally pronounced an opinion in the negative; but the case is not given, and it will probably appear that, in that case, the party issuing out execution was the mortgagee himself. It has been, no doubt, held here that a mortgagee, in executing a money decree against his mortgagor, cannot attach the equity of redemption; but this case is different. Brajanath Kundu Chowdry v. S. M. Govindmani Dasi (1) was also that of a mortgagee executing a money decree against his mortgagor. The proviso in section 271 of Act VIII of 1859 says, “that, when “any property is sold, subject to a mortgage, the mortgagee “shall not be entitled to share in any surplus arising from such “sale," clearly contemplating the sale of equities of redemption. If the Court were to hold that no creditor could sell an equity of redemption, there would be a great deal of fraud practised.

MARKBY, J.--I shall speak to Mr. Justice Phear, and give my decision to-morrow.

MARKBY, J.--I have consulted Mr. Justice Phear on the point raised by Mr. Woodroffe. He informs me that he did not intend to decide it in Brajanath Kundu Chowdry v. S. M. Govindmani Dasi (1). It appears to me that the order may be granted; but I must say that, if it had not been for the proviso in section 271 of Act VIII of 1859, I should have had considerable difficulty in granting the application. As it is, the plaintiffs are entitled to their order, but they must first of all put in an affidavit showing the value of the equity of redemption.

On a subsequent day, Mr. Bonnerjee applied to Mr. Justice Norman on affidavit showing the value of the property, and the order for sale was granted.

Application granted. Attorneys for plaintiffs: Messrs. Judge and Gangooly.

(1) 4 B. L. R., 0. C., 83, See Auhin v. Ahmed Mahomed, 1 I. J., N. S., 241.

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Before Mr. Justice Markby.

ABBOTT 0, ABBOTT AND CRUMP.

1870 April 5.

Execution-- Attachment- Partnership-Property-Act VIII of 1859, s. 205.

A decree-holder, who was also a partner of the judgment-debtor, sought to attach, in execution of his decree, the share of the judgment-debtor in the assets of the partnership business, the business then being in the hands of the Receiver of the Court under a decree for dissolution and winding up. Held, that such share of the judgment-debtor was not property within the meaning of section 205 of Act III of 1859, and therefore not liable to attachment in execution.

This was an application for execution against the co-respondent, W. H. Crump, for non-payment of the costs adjudged to the petitioner. The application was for “ attachment of the co-res

pondent's right, title, and interest in a two-thirds share in the “ assets of the business lately carried on by the co-respondent, “ &c."

Mr. Marindin, in support of the application, referred to sections 201, 205, and 212 of Act VIII of 1859, and to section 15, Act XXIII of 1861. He also cited in the matter of Wait (1), Holmes v. Mentze (2), Davis v. Middleton (3), and Rajkumar Roy v. Kadambini Debi (4).

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MARKBY, J.-In this case a decree-holder, Abbott, applies for execution against the property of his judgment-debtor, Crump. The proceeding arises out of a suit in the Divorce Court, but I assume that the practice as to execution is that laid down by Act VIII of 1859. The application as amended by leave of the Court now stands thus:

“ Attachment of the co-respondent's two-thirds share in the “ assets of the business lately carried on by him in co-partner“ship with the petitioner, at No. 36, Dhurrumtollah Street, in the “ town of Calcutta, under the firm and style of Crump, Abbott, “ and Co., as chemists and druggists, which business is now in the “hands of the Receiver of this Court, under a decree made in “ suit No. 609 of 1869, in this Honorable Court, on and bearing “ date the third day of February 1870.” And the petition which accompanies the application now prays " for an order

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(1) 1 J. & W., 608.
(2) 4 A. & E., 127.

(3) 8 W. R., 282.
(4) 4 B. L. R., F. B., 175.

1870

ABBOTT

CRUMP.

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"restraining the Receiver of this Honorable Court from paying

or making over, and the co-respondent, William Henry Crump, “ from receiving, the two-thirds share of the said William Henry ARBOTT AND

Crump, in the assets of the said partnership business now “ in the hands or control of the said Receiver, or any sum or “sums of money, property, or effects to which the said William

Henry Crump is entitled in respect thereof.” Now, as appears from the application itself, the creditor who is seeking to take these proceedings is a partner in the business with respect to which it is sought that attachment should issue; but I treat this case precisely as if the applicant were an entire stranger. Even so treating him, he is not entitled to have the application granted. The question turns entirely on the construction of section 205, Act VIII of 1859, which has already received consideration in somewhat analogous cases. That section, to some extent, defines what property is liable to attachment; namely,

lands, houses, goods, money, bank notes, cheques, bills of ex

change, promissory notes, Government securities, bonds, or other “ securities for money, debts, shares in the capital or joint stock “ of any railway, banking, or other public company or corpora

tion, and all other property whatsoever, moveable or immove“able, belonging to the defendant, and whether the same be held “in his own name or by another person in trust for him or on his “ behalf.”

The question will be whether this not being property specifically mentioned in the section, comes under the general description of property belonging to the defendant. The word by which the property is sought to be attached, viz. “ assets,” is not of very definite meaning; it is clear, however, what is sought to be attached in this case. The applicant does not seek to take in execution the stock-in-trade of the partnership. He does not seek by the ordinary prohibitory order to prevent debtors of the partnership from paying their debts,-he seeks to attach what is due to the defendant after the Receiver has paid and satisfied the debts and liabilities of the partnership. The applicant seeks to attach two-thirds of those sums of money. I have to say, therefore, whether or no that is property belonging to the defendant under section 205. One thing is clear that, whether or no by any

66

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1870

ABBOTT

v. ABBOTT AND

CRUMP,

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It may

use of the word “property” either in its widest legal or popular sense that which the execution-creditor seeks to attach in this case can be called“ property,” that the decisions of this Court have put some limitation on those words. I myself should doubt whether, however widely the word may be used, this can be called property “belonging to the defendant;” but this Court has already put a construction upon these words, which shows they are not to be taken in their most extended sense. In the case of Bhoobunmohun Bannerjee v. Thacoordoss Biswas (1), an application was made to attach the reversionary rights of the defendant in certain property. These so-called reversionary rights are not such as

. are understood by those words in English law, but rights of the next taker after the death of the daughters of a Hindu widow. It was decided that the attachment could not be made. be argued that this case is not identical with that, as not only was it uncertain there what the successor would take, but who would be the successor. Here it is certain who will take, but uncertain what he will take; or whether there will be anything after the accounts are taken. But the case, at any rate, shows that it is not every possible right which a person may have that can be taken in execution, and therefore there must be a limitation on the word “ property.” Another case, in which the Court has refused to issue execution, In re Pestanji Cursetji Shroff (2), is where the property sought to be taken was books of account, and it was refused on the ground that the property was not in its nature saleable. Mr. Marindin has referred to a before the Full Bench, Cowar Rajkumar Roy v. S. M. Kadambini Debi (3), in which it was held by all the Judges, that not only property could be attached, but any undivided share an execution-debtor might have in property might be attached ; and it was truly inferred from that that the word “property” must be held as extending beyond things existing and tangible. I should be bound by that judgment, in which I entirely concur. The tangibility of the property, or its existence in specie, has nothing to do with the matter. A debt is as incorporeal as a share in a house. The section suggests one limitation, and the deci

case

(1) 2 Ind. Jur., N. S., 277. (2) 3 Bom. H. C. Rep., 42. (3) 4 B. L. R., F B., 175.

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