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1870

DRA PAL

SARMA.

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section is precisely the same with regard to alienations effected pending the execution proceedings as that of the rule of law Anand Chanwhich I first referred to relative to alienations of the subject of

PANCHILAL suit made during the suit itself. The section does neither more nor less than bind the alienee in the cases to which it applies by the order of sale which may be made by the Court after alienation, notwithstanding that he, the alienee, be not a party to the proceedings.

In my view, then, a judgment-creditor, when he attaches specific property of his judgment-debtor in execution of a money decree, may, with convenience, be regarded as having instituted a suit or rather as having converted the original suit against his judgmentdebtor into a suit in respect of that property, and this suit, if successful, will terminate in a decision in rem in the shape of an order for sale: if during this suit before the order for sale an alienation be effected which does not fall within the operation of section 240, the judgment-creditor can only pursue his claim against the property in the hands of the alienee by making the alienee a party to the suit. On the other hand, if the alienation be such that it is covered by section 240, it may be entirely disregarded. To use the words of the Master of the Rolls in the Bishop of Winchester v. Paine (1) (and I quote these words because I think they precisely represent the effect of the Full Bench decision to which I have referred): “ The litigating “parties are exempted from the necessity of taking notice of a “ title so acquired. As to them, it is as if no such title existed.”

I come now to the enquiry, is the alienation which is effected by the force of the vesting order of the Insolvent Court within the words of section 240? Is it such a private alienation as is there spoken of? I think not. Clearly, the Legislature, by the use of

? the word “private,” intended something in the way of a limiting or qualifying character. “Private alienation" must mean something short of all alienations whatever. In the repealed Regulation, from which section 240 is taken, private alienation is opposed to alienation by auction sale, and I apprehend that at the date of that Regulation the words“ auction sale” referred to a sale effected

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(1) 11 Ves., 197.

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DRA PAL

U. PANCHILAL

SARMA.

under some power of selling paramount to the owner's will. ANAND CHaN- In my opinion, private alienation means alienation voluntarily

effected by the owner in exercise of his ordinary powers of ownership. This, the alienation which is brought about by the vesting order, is not. It may no doubt be said to proceed from the will of the owner, when it is the consequence of a petition of insolvency presented by him. But in the same way a sale made by the Collector for default of payment of Government revenue in cases where the default is wilful (and such cases certainly occur) would be voluntary on the part of the defaulter ; and if the intention of the owner that the alienation should take place is enough to render the alienation private within the meaning of section 240, such a sale would be voided by that section as against a previous attaching creditor; but I think no one would be bold enough to argue that it is so. It seems to me that the alienation caused by the vesting order is an alienation affected by operation of law for the benefit of all the owner's creditors upon the happening of certain events, and that its character is in no wise altered by the circumstance that in one alternative the principal event is a voluntary act of the insolvent himself. It follows, according to the views which I have endeavoured to express, that when a vesting order is made relative to the property of a judgment-debtor after attachment in execution of a decree and before order for sale, the judgment-creditor, in order to pursue his claim against the attached property, must make the Official Assignee party to the proceedings. If he does so, he has, I think, with a qualification which I will presently mention, the same right as against the Official Assignee to have the attached property sold as he had before the vesting order against his judgment-debtor. I have never doubted that, apart from the equitable considerations introduced by the Insolvent Act, the Official Assignee, by virtue of the vesting order, takes the property of the judgment-debtor simply as the judgment-debtor himself held it. Indeed I expressly stated in the case of Petumber Mundle v. Cochrane (1) that he takes it subject to the same equities as those to which it was subject in the hands of the insolvent. And it is therefore much satisfaction to me to find that

(1) 1 Ind. Jur., N. S., 11.

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this doctrine has recently, since the case of Petumber Mundle v. Cochrane (1), been forcibly enunciated by so eminent an author- ANAND CHANity as Lord Westbury in Fleming v. Howden (2). The vesting

PANCHILAL order simply transfers the property from the one person to the other, and therefore does not deprive the attaching Court of jurisdiction in due course of proceeding and in proper exercise of its judicial discretion to order the sale of the attached property. But when the Court is asked to order the sale of the property after it has been thus transferred to the Official Assignee, and when it has the Official Assignee properly before it, then comes into play the qualification which I conceive to be effected by the insolvency in the right of the judgment-creditor to pursue the property,-namely, that this right of his against his debtor, however it may be designated, ought not to be allowed to defeat the policy of the Insolvent Act. It is not necessary for me now to discuss this particular topic further. I will only add that when sitting on the other side of this Court in the exercise of its original civil jurisdiction, I have invariably considered myself bound, on the application of the Official Assignee, to stay or set aside execution proceedings and to allow him to take the judgment-debtor's attached assets, unless special reason for a contrary course has been shown. I have always understood the policy of the Insolvent Act to be that all the creditors alike, irrespective of their individual priorities or diligence, should be paid rateably, the Act in this respect differing notably from the Winding-up-Acts; and it has appeared to me that the discretion vested in the Civil Courts by section 49 of the Insolvent Act was bestowed upon those Courts in order that it should be exercised in furtherance of the purposes of the Act. Of course the equities of the Insolvent Act rest upon the assumption that there is real insolvency, and that there are assets to administer. If, therefore, in any given case the Civil Court has reason to believe that the insolvency proceedings are fictitious and instituted by the judgment-debtor himself for the purpose of barassing or defrauding his creditor, that Court would be right in refusing to stay execution at the instance of the Official Assignec.

(1) 1 Ind. Jur., N. S., 11.

(2) L. R., 1 Scotch App., 382.

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On the case which is stated to us in this reference, I must ANAND CHAN- assume that the proceedings of the Zilla Judge were regular.

I do not think that the vesting order made by the Insolvent Court affected his jurisdiction to continue the execution proceedings and to order the sale of the attached property, if in the due exercise of his judicial discretion he thought fit to do so. It is not expressly said that he had the Official Assignee before the Court after the transfer of property effected by the vesting order and before making the sale, but I cannot suppose that he omitted this step, and indeed it seemed to be admitted in the argument that the Official Assignee had been heard in the Zilla Court. It is not our concern to enquire whether or not the Judge might with propriety have stayed the execution proceedings; we must take it that he did in fact order the sale in due course, and I think, consequently, that that sale operated to pass the property out of the hands of the Official Assignee into those of the purchaser-defendant, and that the Official Assignee was thus left without anything to sell to the plaintiff.

Before Sir Richard Couch, Kt., Chief Justice, Mr. Justice Kemp, Mr. Justice

L. S. Jackson, Mr. Justice Phear, and Mr. Justice Mitter.

1870 May 16.

RADHA PYARI DEBI CHOWDHRAIN AND OTHERS (PLAINTIFFS) 0.

NABIN CHANDRA CHOWDHRY (DEFENDANT).*

Act VIII of 1859, s. 230—Evidence-Title- Possession. On an application under section 230, Act VIII of 1859, in the investigation of the matter in dispute, the Court may go into the question of title. It is open to the applicant to give evidence of title beyond mere possession, and the decree-holder may prove his title to the property.

ONE Nabin Chandra Chowdhry obtained a decree against the Government for possession of certain fisheries, and in execution of his decree he obtained possession of them. The plaintiffs in the several cases applied to the Court, under section 230 of Act VIII of 1859, stating that they had severally been in possession of the said fisheries; that the fisheries belonged to them; that

* Regular Appeals, Nos. 182, 184, 189 and 213 of 1868, from a decree of the Judge of Rangpore, dated the 10th December 1868.

1870

RADHA PYARI
DEBI Chow-
DHRANI

v.
NABIN
CHANDRA
CHOWDHRY.

they were not parties to the suit in which the decree was passed, and praying to be restored to possession.

The Judge found that there were conflicting claims regarding the fisheries in dispute, and dismissed all the suits, leaving the several plaintiffs to their remedy by suit.

On appeal, the High Court (NORMAN and E. JACKSON, JJ.) remanded the several cases for trial of the following issues in each :

Was the claimant really and bona fide in possession of the fisheries claimed, at the time of the execution of the decree?

Was he dispossessed by the decree-holder in execution of the decree ?

On remand, the Judge passed decrees in favor of the plaintiffs in cases Nos. 182, 184, and 213, and dismissed the case No. 198.

Objections were filed to the several findings of the Judge.

The appeal in case No. 198 came on for hearing before a Division Bench (NORMAN and E. JACKSON, JJ.) On account of the conflicting decisions in Nugender Chunder Ghose v. Ram Comul Mundul (1), Mahomed Ausur v. Prokash Chunder Sha (2), Ajoo Khan v. Kisto Pershad Lahoory (3), their Lordships referred the following questions for the decision of a Full Bench, viz. :

“Whether a person, who has been dispossessed of land or fisheries in execution of a decree against a third person to which he is no party, is bound to prove anything more than that he was really and bona fide in possession, and dispossessed in execution of such decree?

“Whether the decree-holder can put the plaintiff to proof of his title, or, on an application numbered and registered as a suit under section 230, in answer to and not merely as controverting the plaintiff's evidence of possession, can go into evidence of title himself ?”

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Baboo Srinath Das for the appellants.

Baboos Aushutash Chatterjee and Mahini Mohan Roy for the respondents.

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