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1870

ABBOTT

CRUMP.

sons.

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sion of Westropp, J., suggests another. Even if you could call these assets property, it is impossible to call them property belonging to the defendant. What now belongs to the defend- ABBOTT AND ant is a share in the stock-in-trade and in the outstandings. The sum which may ultimately be found due can hardly be said to belong to the defendant before it is known what it is, or whether there will be anything. The words of the Bombay decision are, I think, that books are not property which is in its nature saleable, by which Westropp, J., does not mean that it is physically impossible to sell it, for the books could be sold, but that they are not sold, according to the ordinary dealings of per

I do not think it would be in accordance with the ordinary dealings of persons to sell possible sums of money which might be found due to a person after accounts have been taken. I do not mean that the Court has not a discretion after attachment to consider whether it will order a sale; but sale is the end of every attachment, and the Court ought not to issue attachment against any property which, from its very nature, ought not to be sold; and I think that anything so indefinite as the rights of this judgment-debtor ought not to be sold. I look upon this as quite distinct from a share in a railway company. The rights of shareholders are the creation of the Statute incorporating the Company, and by the words of that Statute and by common usage, they are made the subject of sale. The case coming nearest to this is that of an equity of redemption. In Brajanath Kundu Chowdry v. S. M. Gobindmani Dasi (1), Phear, J., says: “I had “ been disposed always to take the view that the attachment “ sections of Act VIII do not apply to such property as an equity “ of redemption; and I have been told that Mr. Justice Nor

man, on one occasion, formally pronounced an opinion to that “ effect. But I abstain from judicially deciding that point “ now.” I must say I should fully concur in that doubt, and have only surrendered the doubt to the words of section 271, Act VIII of 1859, “ provided that when property is sold subject “ to a mortgage, the mortgagee shall not be entitled to share “ in any surplus arising from such sale.” But for those words

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1870

ABBOTT

.

CRUMP.

I should have been inclined to hold an equity of redemption

not liable to attachment. On the whole, I consider that what ABBOTT AND the judgment-creditor desires to attach is not“ property” within

the meaning of the words section 205. It has been brought to my notice that, in another case, in respect to this very property, Macpherson, J., granted a similar attachment; but I cannot say whether this point was brought to his notice or considered by him; and as I do not know whether Mr. Justice Macpherson differed from my view, I must leave the party to appeal rather than refer the question to a Full Bench.

Application refused.

Attorneys: Messrs. Robertson, Orr, Harris, and Francis.

Before Mr. Justice Phear.

THAMA SING v. KALIDAS ROY.

1870 April 7.

Execution-- Attachment-Partnership-Act VIII of 1859, ss. 233, 234. A decree-holder in execution attached and seized certain property which belonged to the judgment-debtor in partnership with another person, who alone at the time of attachment was in actual possession. Held, that such property was the subject of attachment in execution of the decree against the one partner, but such attachment must be limited to his share, and the attachment should be by prohibitory order, not by actual manual seizure.

The plaintiff had obtained a decree in this suit on December 2nd, 1869, for rupees 8,549-10, and rupees 433-5 costs, with interest at six per cent. per annum.

The defendant had carried on business in partnership with one Nabinchandra Daw, principally as dealers in salt, at 34 Chalapatti, in Barrabazar. On the 12th March 1870, the plaintiff applied for execution of his decree; and by order of Court, the Sheriff attached' and took possession of, on 14th March 1870, “all that khari salt “ and churah salt lying in godowns in premises, 146 Huka“patti, and 34 Chalapatti, in Barrabazar, in Calcutta.” On 15th March, Nabinchandra Daw gave notice of his claim to the property seized. He was at the time of seizure in actual possession of the property, but the defendant was not.

1870

Mr. Kennedy and Mr. Phillips for the claimants now applied

THAMA SING to have the attachment removed.

Kalidas Roy. The Advocate-General and Mr. Marindin for the judgmentcreditor.

PHEAR, J.-I am not satisfied that the claimant has made out a title to have the attachment removed, but I think that the attachinent ought to be limited to Kalidas Roy's share in the salt to which he is entitled in the firm of Kalidas Roy and Co. The mode of attachment in this case has not followed the provisions of Act VIII of 1859; the attachment should be by notice, and not manually; and that being the case, I think each party should pay his own costs. Let the matter be mentioned to-morrow, and I will then decide finally.

The next day the following decision was given by

PHEAR, J.-The judgment-creditor admits that his debtor is only entitled, as member of a partnership, to a share in the salt seized. It is contended that there is no express provision in Act VIII of 1859 which directs any particular mode of attachment to be followed in attaching an undivided share of moveable property. In England, the Sheriff can only seize the entirety of a chattel; therefore, no doubt, when a partnership share is seized and sold in execution in England, the Sheriff takes manual possession of the chattel to the exclusion of the partners. But as I understand the procedure in this country, the like difficulty does not here arise. Act VIII of 1859 provides two modes of seizure. The one is that of actual manual possession by the officer of the Court; the other is by way of formal notice, or injunction forbidding alienation. The first applies only, as I understand Act VIII, to the case where the judgment-debtor is of his own right in actual possession of a chattel or moveable property, or where some third person is in possession of it on his behalf, under such circumstances that the judgmentdebtor could claim sole immediate possession of it. 'udgment, attachment by manual seizure does not apply to a case like the present.

Section 233 of Act VIII of 1859 provides that, “when the property shall consist of goods, chattels, or

In my

1870

“other moveable property in the possession of the defendant, Tuama Sing “ the attachment shall be made by actual seizure, and the Nazir Kalidas Roy." or other officer shall keep the same in his custody, or in the

custody of his subordinates, and shall be responsible for the “due custody thereof.” Probably this section would cover the case where a third person held possession solely under the control and for the benefit of the judgment-debtor ; but it seems to be clear that section 234 intends the attachment to be by written order, whenever some other person than the judgment-debtor has the right to exclusive and immediate possession. The words are:“ Where the property shall consist of goods, chattels, or other “ moveable property to which the defendant is entitled, subject to a lien or right of some other person to the immediate posses“sion thereof, the attachment shall be made by a written order,

prohibiting the person in possession from giving over the pro“perty to the defendant.” Here not only is the property not as a matter of fact in the possession of the judgment-debtor, but it is in actual possession of another person who has as great a right by the admission of the judgment-creditor to immediate possession as the judgment-debtor has. I think our law of procedure does not go to the extent of authorizing the judgmentcreditor to take property out of the possession of a person entitled to immediate possession, not being the judgment-debtor. I must alter the form of the attachment, but it must date as of the original date. I have now expressed my opinion only; for I shall abstain from giving my decision till the point is referred to be decided by a Full Bench.

Application refused. Attorney for the plaintiff: Baboo Brajanath Mitter.

Attorneys for the defendant: Messrs. Gray & Sen.

[APPELLATE CIVIL.]

Before Mr. Justice Phear and Mr. Justice Mitter,

1870 April 22.

SRIMATI SARASIBALA DEBI AND ANOTHER (DEFENDANTS) v. NAND

LAL SEN (PLAINTIFF).*
Regulation XVII of 1806, s. 7– Mortgage-Foreclosure of Equity of

Redemption—"Stipulated Period."
By a mortgage in the English form, the defendants conveyed certain property to
the plaintiff, subject to the proviso that, in the event of the defendants paying
to the plaintiff the principal sum on the 4th September 1868, and in the meantime
paying interest on that sum half-yearly, with annual rests, in caso of default of such
payment, then the plaintiff should re-convey the property. The defendants failed
to pay interest ; and on the 4th December 1866, the plaintiff applied to the
Judge of Chittagong for foreclosure ; thereupon notice under section 8 of Regu-
lation XVII of 1806 was issued, and served on the defendants. On the 15th
April 1868, this suit was instituted by the plaintiff for the establishment and con-
firmation of absolute purchase, and to obtain possession of the mortgaged premises.

Held, that the suit was not maintainable. Regulation XVII of 1806 applied to this mortgage; and, under that Regulation, the mortgagee could not apply for foreclosure, until the time agreed upon for re-payment by the mortgagor, that is, the “stipulated period” referred to in section 7, and the mortgagee is entitled to one year's grace from notification of the application for foreclosure made after that date.

This was a suit instituted by the plaintiff on the 15th April 1868, for the establishment and confirmation of absolute purchase, and to obtain possession of talooks Taraff Bhawanicharan and Nilam Bhawanicharan. The plaint stated that the defendants had executed a deed of mortgage in the English form to the plaintiff's father, Gabindchandra Sen, of the said talooks, dated 4th September 1863; that the defendants made default in payment of interest; that the plaintiff's father had applied for foreclosure to the Judge of Chittagong, who, on the 4th December 1866, admitted the application and issued a notification to the defendants under section 8, Regulation XVII of 1806; that the plaintiff's father died, after the right to possession had become absolute; that the plaintiff had obtained

* Regular Appeal, No. 160 of 1869, from a decree of the Judge of Chittagong, dated the 18 March 1869,

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