Tirpit Thakur vs Mahanth Ramperkash Das

Das, J.—The opposite party obtained a decree against the petitioner for Rs. 7,000 more or less. The petitioner then applied to be adjudicated an insolvent under the provisions of the Provincial Insolvency Act, and we are informed that his petition has been admitted. The opposite party has attached certain immovable property belonging to the petitioner in execution of his decree and the petitioner thereupon applied to the Court for stay of execution proceedings on the ground that he has applied for insolvency.

The application was apparently made u/s 52, Provincial Insolvency Act, which, it may be pointed out, does not confer any right upon the insolvent to make an application in the form in which ho has made it. Section 52 provides that:

Where execution of a decree has been issued against any property of a debtor which is saleable in execution and before the sale thereof notice is given to the Court executing the decree that an insolvency petition by or against the debtor has been admitted, the Court shall, on application, direct the property, if in the possession of the Court, to be delivered to the receiver, but the costs of the suit in which the decree was made and of the execution shall be a first charge on the property so delivered and the receiver may sail the property or an adequate part thereof for the purpose of satisfying the charge.

It is obvious that the object of the section is not to give an advantage to the insolvent but to prevent individual" creditors deriving unfair advantage over other creditors and to place the property in the hands of a receiver for equal distribution to the general body of creditors. The section no doubt gives is right to the insolvent to make such an application but it is obvious that the application must be made for the general body of creditors and not for the insolvent, We are informed that the property has been attached in execution of the decree, so that we may say that the property is in the possession of the Court, and the only order which the Court can make on an application u/s 52 is that such property be delivered to the receiver.

The learned Subordinate Judge has refused the application on the ground that Section 52, Provincial In- solvency Act, applies "to cases of move-able property only." Now there is no justification for this view in the words of the section itself, and I am of opinion that the view taken by the learned Subordinate Judge on this point is wholly erroneous. But still the point remains whether an order u/s 52 can be passed. As I have said the only order which the Court can pass u/s 52 is that the property be delivered to the receiver, so that it follows that the order can only be made if the receiver has all ready been appointed and clothed by the insolvency court with power to take possession of the insolvent''s property.

The learned advocate appearing on behalf of the opposite party informs us that such a receiver has already been appointed, but beyond that we know nothing at all ; so the only order which we can pass in this case is that the learned Subordinate Judge shall make over the property to the receiver if such receiver has already been appointed by the insolvency court; but that if no such receiver has been appointed he may proceed with the execution but hold the sale proceeds subject to such order as the insolvency court may pass; in the matter.

Adami, J.

I agree.