Budh Singh Dudhuria vs A.B. Miller Official Assignee And … on 11 August, 1890

Calcutta High Court
Budh Singh Dudhuria vs A.B. Miller Official Assignee And … on 11 August, 1890
Equivalent citations: (1891) ILR 18 Cal 43
Author: K W. Petheram
Bench: W C Petheram, Kt., Rampini


JUDGMENT

W. Comer Petheram, Kt., C.J.

1. This was a suit brought by the plaintiff against a person called Shibodas Mohuri to recover a sum of Rs. 12,100 and interest. Shortly before the suit was brought, proceedings had been taken against this man under the Insolvency Act, and his estate was vested in Mr. Miller, the Official Assignee. Upon that an application was made to the Subordinate Judge to substitute Mr. Miller as a defendant in place of the original defendant, the actual debtor and that application was acceded to, and Mr. Miller was placed upon the record. The case then went to trial. The Subordinate Judge tried the case, and came to the conclusion that the original debtor did owe the money, and he gave judgment against Mr. Miller for the sum claimed to be paid out of the insolvent’s estate.

2. The first order putting Mr. Miller’s name on the record was, in our opinion, wrong. There is nothing in the Insolvency Act which enables a suit of this kind to be continued against the Official Assignee when the defendant has become insolvent, and this is not the case of the assignment of any interest within the meaning of Section 372 of the Code of Civil Procedure, such as would enable the plaintiff to proceed against the Assignee. We think, therefore, that the Subordinate Judge was wrong in placing Mr. Miller’s name on the record; but his name having been wrongly placed there, we think that the judgment against him in this form must be wrong, and the reason is that such a judgment would work manifest injustice and prevent the beneficial operation of the Insolvency sections of the Act, because a judgment of this kind, as against Mr. Miller, comes to this, that he is to pay the money out of the estate in his hands, and that this man, the plaintiff, is entitled to get the whole of his claim, and that it is to be paid in full if the whole estate of the insolvent is sufficient to pay him. This is clearly wrong, and consequently this appeal must be allowed, and the judgment of the Subordinate Judge and the order substituting Mr. Miller’s name on the record must be set aside, and the case remitted to the Subordinate Judge for re-trial as against the original defendant. The plaintiff must pay the costs of this appeal.

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