DRA PAL v. PANCHILAL SARMA. Official Assignee: but when the point again came before him in 1870 Rampersaud v. Callachund Doss (1), Macpherson, J., resiled ANAND CHANfrom his original opinion, and followed Petumber Mundle v. Cochrane (2). This was unfortunately confirmed on appeal, and followed in Roy Chunder Roy v. Bampton (3), and other cases, The opinion expressed by Mr. Justice Norman in Rajchunder Roy v. Isserchunder Roy (4), is correct, although it was subsequently overruled. Attachment before judgment is, like a writ of sequestration, a penalty, and, as in the case of sequestration, that penalty enures to the benefit of the particular person enforcing it: Smoult's Rules and Orders, pages 211, 212, and cases there cited. Reference was then made to Sections 81, 84, 87, 237, 240, 243, 257, 259, 260 of Act VIII of 1859, and stress laid on the circumstance that sequestration before judgment was not dissolved by insolvency-Doe d. O'Hanlon v. Paliologus (5). Similarly a writ of fi. fa. in the hand of the sheriff is not made ineffective by insolvency-Giles v. Grover (6). A transfer of the judgmentdebtor's property to the Official Assignee can (except as stated in the beginning of the argument) have no greater validity than a transfer to executors and administrators after the death of a debtor. Section 49 of the Indian Insolvent Act authorizes the Official Assignee to apply in certain cases to stay proceedings in execution, and gives the Court, in which the case is pending, or execution proceedings are being taken, a discretion to stay proceedings accordingly. This section could have no force if the mere fact of a vesting order having been made transferred property to the Official Assignee discharged from attachment. The following cases were also cited:-Odes v. Woodward (7), Clerk v. Withers (8), Bragner v. Langmead (9), Waghorne v. Langmead (10), Calvert v. Tomlin (11), Samuel v. Duke (12), Ranken v. Harwood (13), Mohunt Naunk Buksh v. Koonwur (1) 1 Ind. Jur., N. S., 325. (2) Id., 11. (3) 2 Ind. Jur., N. S., 188. (4) Bourke, 139. (5) Morton, 323. (6) 9 Bing., 128. (7) Ld. Raym., 850. (8) Ld. Raym., 1072. (10) 1 B. & P., 571, (11) 5 Bing., 1; S. C., 2 M. & P., 1. (13) 10 Ind. Jur., O. S., 794. 1870 DRA PAL V. Roy (1), Unnopoorna Dassea v. Gunga Narain Paul (2), Kartick ANAND CHAN- Churn Singh v. Gogaram (3), Ramdhan Mitter v. Kailasnath Dutt (4), Winter v. Gartner (5), Punchanun Bannerjee v. Hurrymohun Sen (6), Woodland v. Fuller (7) Cochrane v. Hurrosoondurri Debia (8). PANCHILAL SARMA. Mr. Woodroffe, for the respondent, relied on Sarkies v. Mussamut Bundho Baee (9), Petumber Mundle v. Cochrane (10), In re Gocool Doss Soonderjee (11), Rampersaud v. Callachund Doss (12), Roy Chunder Roy v. Bampton (13), Cochrane v. Gladstone Wyllie (14), Indra Chandra Dogar v. Tarachand Dogar (15), and contended that the vesting order having been passed before the sale in execution of the decree of the Zilla Judge took place, the Official Assignee was entitled under the vesting order to possession of the insolvent's property, even though it had been attached in execution of a decree, and an order for sale in execution had been passed. The opinions of the learned Judges were delivered as follows: COUCH, C. J. (after stating the facts and the question referred, continued) The provision in the Indian Insolvent Act, 11 and 12 Vict,. c. 21, as to the vesting of the estate and effects of the insolvent in the Assignee is similar to the provison in the English Insolvent Act, 1 and 2 Vict., c. 110, and there is nothing in the Indian Act which can give to the Assignee under it a greater right than the assignee in England has. The vesting order of the Insolvent Debtors' Court, under section 37 of the English Act, has the same legal operation as the assignment to the provisional assignee had for which it was substituted. Now, Lord St. Leonards in In re Atkinson (16), in his judgment as Lord Chancellor says:— "Two questions arise on this appeal; first, whether the "title of the Assignee in insolvency is so absolute that it cannot 1870 "be disturbed, and, secondly, what, under the circumstances as ANAND CHANthey here appear, are the rights of the Assignee for value. "It may be considered as decided that the Assignee in insol 66 66 vency represents the insolvent; he stands in his place and takes only such interest as he can give and subject to all equities by "which the insolvent is bound. It has, however, been contended "that the effect of the Act is so to vest the property that the in"solvent cannot afterwards divest it; but this is not so, for there "are no words in the Act giving to the Assignee any higher "interest than the insolvent himself has: the Assignee does not "therefore take so as not to be subject to equities as administered "in this Court." And Lord Westbury in moving the judgment of the House of Lords in Fleeming v. Howden (1) says: 66 "The right of a trustee under a sequestration is very different "from the right of a singular successor, for it is a rule common to "both English and Scotch Bankrupt Law that the trustee or assignee takes the property of the bankrupt subject to all the rights and equities that affected it at the time of the bankruptcy. "But the singular successor is not bound by a trust or duty of "which he had no notice. The trustee under a sequestration is "in the same position as a gratuitous alienee. He takes such "estate or interest only as the bankrupt can lawfully convey. So "in England the assignee takes such interest only as the bankrupt can lawfully depart withal. The force of the two expressions is "the same, and the implied conveyance to the trustee or assignee "ranks no higher than a gratuitous alienation." 66 No higher authorities could be quoted for the rule which is to be applied in any case where it is necessary to determine what is the right of an Official Assignee. No doubt, as it was argued, he represents the creditors and is a trustee for them; but that cannot give him a greater interest in the property than the insolvent had. It appears to me that in the decisions in the Indian Courts this rule has been lost sight of, and the question has been treated as if it were whether the property passed to DRA PAL PANCHILAL (1) L. R., 1 Scotch App., 382. 1870 the Official Assignee, and whether any charge or lien upon it was ANAND CHAN- Created by the attachment. I except the case of Gamble v. Bho DRA PAL v. PANCHILAL lagir (1), where the point was not raised, and it was assumed that if the attachment after decree was complete without reseizure by the nazir, the execution creditor was entitled to preference, as regarded the attached goods over the Official Assignee. I think the question before us must be decided by considering the rule laid down by Lord St. Leonards and Lord Westbury in connection with the provisions of the Code of Civil Procedure. At the most, the English cases upon a different form of Procedure in execution can only assist us as being analogous. It is a little remarkable that although the English law has been so much referred to in considering this question, the case in the English Courts which is most applicable to it appears to have been the least noticed. It is not mentioned in the elaborate judgment of the High Court of the North West Provinces, Sarkies v. Mussamut Bundho Baee (2). I mean the case of Woodland v. Fuller (3). There a writ of fi. fa. against a person was lodged with the deputy of the sheriff who immediately issued a warrant to an officer. Afterwards, on the same day, a vesting order was made by the Insolvent Debtors' Court transferring the person's estate, and the assignee took possession of his property under it. The Sheriff's officer afterwards seized it, and it was held by the Court of Queen's Bench, that the seizure was proper; that the vesting order only vested the property in the assignee subject to the right of the execution creditor. The Court entertained no doubt, and the case is an instance of the application of the rule, that the assignee takes the property subject to the rights and equities which affected it at the time of the bankruptcy or insolvency. But as I have said, the question must be answered by a reference to the Code of Civil Procedure. By Section 15 of Act XXIII of 1861, substituted for Section 215 of Act VIII of 1859, it is enacted that, "if the appli"cation for execution of a decree be admitted, the Court shall "order execution of the decree according to the nature of the appli "cation." Section 221 of Act VIII of 1859, says: "When all 1870 66 DRA PAL v. PANCHILAL necessary preliminary measures have been taken, where any ANAND CHAN"such are required, the Court, unless it see cause to the con"trary, shall issue the proper warrants for the execution of the "decree." Section 232 is "If the decree be for money and the amount "thereof is to be levied from the property of the person against "whom the same may have been pronounced, the Court shall "cause the property to be attached in the manner following," and thereafter the different modes of attachment are given. Section 242 says: "In all cases of attachment under the preceding "sections, it shall be competent to the Court at any time during "the attachment to direct that any part of the property so attached "as shall consist of money or bank notes or a sufficient part thereof "shall be paid over to the party applying for execution of the "decree, or that any part of the property so attached as may not "consist of money or bank notes so far as may be necessary for "the satisfaction of the decree, shall be sold, and that the money "which may may be realized by such sale or a sufficient part thereof "shall be paid to such party." Now, it is a rule, that when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application. This has been often decided, and it is sufficient to quote the cases of Macdougall v. Paterson (1), Crake v. Powell (2), and Bowes v. Hope Life Insurance Company (3). In those cases the word used in the Statute was 'may.' According to this rule, the words "it shall be competent to the Court" in Section 242 must not be construed as giving to the Court a power which it may exercise or not as it thinks fit, but as obligatory and conferring on the attaching creditor a right to have the attached property sold and the money realized by the sale paid to him. Section 116, which provides for the non-appearance of one or more of several plaintiffs, is an instance of the same words "it (3) 11 H. L. C., 389, (1) 11 C. B., 755. (2) 2 E. & B., 210. SARMA. |