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Bombay High Court
Mahasukh Jhaverdas vs Valibhai Fatubhai on 13 December, 1927
Equivalent citations: (1928) 30 BOMLR 455
Author: Madgavkar
Bench: Madgavkar, Patkar


Madgavkar, J.

1. After attachment and before sale, the judgment-debtor applied to be adjudicated insolvent. The question in this case is whether the attaching Court was bound under Section 52 of the Provincial Insolvency Act to adjourn the sale and direct the property to be delivered to the receiver, or, whether it was right in ordering the sale to proceed, proposing to pay over the sale proceeds only to the receiver. That question depends upon whether the words “in the possession of the Court” used in Section 52 of the Provincial Insolvency Act include the process of attachment by the Court. We are of opinion that the effect of attachment of an immoveable property under Section 64 of the Code of Civil Procedure is that the property attached is kept in custodia legis during the period of attachment. Whether physical possession does or does not exist, is immaterial. It follows that the Court which attaches the property and purports to sell it is in possession within the meaning of Section 52 of the Provincial Insolvency Act, and must stop the proposed sale and direct the property to be delivered to the receiver.

2. We allow the application, and set aside the order of the lower Court.

3. The applicants will get their costs from the assets. The opponents to bear their own costs in both the Courts.

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