Soobul Chunder vs Russick Lall Mitter on 17 January, 1888

Calcutta High Court
Soobul Chunder vs Russick Lall Mitter on 17 January, 1888
Equivalent citations: (1888) ILR 15 Cal 202
Author: W C Petheram
Bench: W C Wilson, Tottenham


W. Comer Petheram, C.J.

1. (Wilson and Tottenham, JJ. concurring).–This appeal arises out of an application to stay proceedings in the execution of a decree of this Court, made by the plaintiff in the present suit, which is a suit to administer the estate of Prosunno Coomar Surbadhicarry, deceased, who was the person against whom the decree, which is now sought to be executed, was obtained, and whose property has been attached under it. The facts are as follows : On the 4th June 1886, the present respondent, Russick Lall Mitter, sued Prosunno Coomar Surbadhicarry, on the Original Side of this Court, to recover a sum of money, and on the 22nd July 18.86 obtained a final decree against him. On the 5th November 1886 Prosunno Coomar Surbadhicarry died, and on the 18th December 1886 the respondent applied to attach property under his decree. On the 21st December 1886 the plaint of Soobul Chunder Law, the present appellant, was filed, praying that accounts might be taken and the estate of Prosunno Coomar Surbadhicarry administered by the Court.

2. On the 8th and 12th January 1887 certain properties belonging to the estate of the deceased were attached under a decree pursuant to the application of the respondent, dated 18th December 1886, and on the 20th January 1887 a decree in the administration suit was made in favour of the plaintiff, the present applicant, who, thereupon, on the 5th May 1887, moved the Court to restrain the respondent from selling the attached property. The motion was rejected by Mr. Justice Trevelyan, and the present appeal is against his order of rejection. The sections of the Code which are applicable to the questions are Sections 213, 276, and 295; and before considering the English cases which have been cited, it will be well to examine those sections to ascertain whether the English authorities have any bearing on the matter, or whether the law here is so different to the law in England that they have not.

3. Section 213 provides that, when the estate of a deceased person is being administered by the Court, the assets shall be divided among his creditors, as if he were living and his estate was being administered under the insolvent law; and Section 295 provides that, where property has been attached under a decree, and prior to its realization other decree-holders have applied for execution against the debtor, the assets shall be divided amongst them all, including, of course, the person on whose application the property was originally attached. Nothing equivalent to this section is contained in the English law, and the doctrine of the Courts of Equity, which corresponds to some extent to Section 213, is the doctrine that a decree for administration of the estate of a deceased is a decree in favour of all creditors; and, that as all of them are included in the same decree, it would be inequitable that one should be in a better position than another under that decree, and therefore the Court divides the assets among them. But in cases in which any creditor has obtained judgment before the decree in the administration suit, the English Courts do not interfere under the equitable doctrine, because, as it would seem, he has a judgment already, and so cannot have another under the administration decree. As I said before, the law in this country rests upon the sections of the Code so far as they are applicable, and not merely upon any doctrine of equity; and it is manifest that, according to the spirit of the Code, it was intended that all debts not actually paid should rank upon the estate, as in insolvency ; and, in my opinion, the only questions are, whether the attachments of the 8th and 12th January had the effect of handing over the property attached to the creditor, so as to amount to payment; or whether they created any charge on the properties entitling the respondent to be paid out of them in priority to the other creditors of the deceased.

4. It is scarcely necessary to do more than state the first question, as Section 295 draws a sharp distinction between attachment and realization, and clearly shows that the legislature did not intend to treat the debt as paid until the money has found its way into the hands of the creditor. The other question is one of more difficulty, and depends on the construction which-should be placed on Section 276. That section avoids, as against the attaching creditor, any alienation of the property made by the debtor during the continuance of the attachment.

5. It is contended on behalf of the respondent, that in addition to this the attachment creates an interest in the creditor, which enables him to-be paid out of the property attached in priority to all other creditors; and in support of this contention we were pressed with the Full Bench case of Anand Chandra Pal v. Panchilal Sarma 5 B.L.R. 691

6. In that case certain property was attached at the suit of a decree-holder ; afterwards the debtor was declared insolvent and a vesting order was made. The property was then sold under the attachment, and it was held that the sale was good, the attaching-creditor having by the attachment acquired some interest in the property which was not divested by the vesting order.

7. We are, however, of opinion that the case has no application under the present state of the law. Section 240 of the old Code was not in the same terms, and was not limited in the same way as Section 276 of the present Code, nor did that Code contain any such provision as that in Section 295. We think, therefore, that neither the English cases nor the cases decided under the old Code are applicable to the present case, and that we must deal with the matter as one which is not governed by any authority.

8. As I have before remarked, Section 276 defines certain transactions which are rendered void by the attachment; but that definition does not include. the claims of other creditors, and we think that as they are not included in the definition, they are excluded by it, and that the attachment does not create, in favour of the attaching-creditor, any interest in, or charge upon, the property as against other creditors.

9. We come then to the conclusion that, according to the spirit of the law, as contained in the Indian Codes, which we are bound to administer the assets of the deceased which have not been realized on behalf of a particular creditor are to be divided among the general body of the creditors; that there is nothing in the Codes themselves to prevent us from giving effect to the spirit of the law, as, in our opinion, the attachment creates no charge upon the property; and that, consequently, in the exercise-of his discretion, the learned Judge ought to have restrained the execution of the decree in this case. Accordingly we decree this appeal, and direct that an injunction do issue in the terms of the motion; all costs to come? out of the estate.

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