Badal Singh And Ors. vs Birch on 21 August, 1888

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Calcutta High Court
Badal Singh And Ors. vs Birch on 21 August, 1888
Equivalent citations: (1888) ILR 15 Cal 762
Author: W C Petheram
Bench: W C Petheram, Tottenham


W. Comer Petheram, C.J.

1. This is a reference from the Judge of the Small Cause Court at Darjeeling, and the question is, whether the plaintiff is entitled to proceed with the execution proceedings under a decree which he has obtained. The plaintiff in the suit is a person called Badal Singh and the defendant is a Mr. Birch.

2. The facts of the case are these, that in the month of October or November 1887 Mr. Birch had filed an application to be declared an insolvent in the proper Court at Darjeeling and filed his schedule. That having been done, Mr. Birch was declared an insolvent, but nothing further was done in the matter, because, so far as we are told, there were no assets to divide, and no receiver was ever appointed. After that, in the month of May last the plaintiff Badal Singh having brought a suit in the Small Cause Court at Darjeeling against Mr. Birch to recover a sum of money in respect of which his name had been scheduled in Mr. Birch’s schedule, the case came on for trial. But Mr. Birch did not defend that suit; he did not appearand put in a written statement, and accordingly the plaintiff proved his case and obtained a decree ex parte, and having obtained his decree, he proceeded to attach Mr. Birch’s salary, which he is now earning as the Secretary of the Darjeeling-Himalayan Railway, and an order has been made attaching half of Mr. Birch’s salary under that application, and the present application is by Mr. Birch to set aside that attachment on the ground that the plaintiff cannot proceed under that decree in consequence of the insolvency proceedings.

3. As I said just now, no receiver has ever been appointed to the insolvent’s estate, and none of the other creditors intervene and object to this proceeding in any sense whatever. The decree was obtained long after the insolvency proceedings in a suit in which Mr. Birch did not think it worth his while to appear, and the decree, on the face of it, is perfectly regular, and there is no application to set it aside. Under these circumstances we do not see any reason why, as against Mr. Birch, this decree should not be executed. If a receiver had been appointed, and appointed for the whole body of creditors, then it might be that he might object to his salary being attached, on the ground that, if anybody was entitled to get it, he was entitled on behalf of the general body of creditors. No one here represents any of the other creditors, and so far as we can tell all the other creditors have been settled with in some way or other. But the question here is whether Mr. Birch, having allowed this decree to go against him, can now avoid payment of this debt altogether by setting up this insolvency proceeding in which practically nothing whatever has been done. We think he can do nothing of the kind, and that until that decree has been set aside and if that is to be done it must be done in some other form, it is binding against Mr. Birch, and any property which he may acquire, and which is not claimed by the receiver on behalf of the general body of creditors, is liable to attachment.

4. We think then that the plaintiff’s proceedings are perfectly regular, and that this question must be answered by saying that the order made by the Small Cause Court Judge of Darjeeling in favour of the debtor must be set aside, and the execution allowed to proceed at the suit of the plaintiff.

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