Decided on April 06,1953

A.P. Subramania Mudaliar And Ors. Respondents


Panchapakesa Ayyar, J - (1.) THIS is a petition by the Official Assignee, Madras, for orders declaring that respondents 2 and 3 have no manner of right to the amount Rs. 3,132 -0 -0. deposited in C. S. No. 132 of 1952, on the file of this Court, and that the applicant alone is entitled to the same, and for an order permitting the applicant to draw out the said amount of Rs. 3,132 -0 -0.
(2.) THE facts were briefly these. The Official Assignee is in charge of the properties of the insolvent, and the insolvency petition was admitted on 12 -12 -1952. Respondent 3 filed O. S. No. 6G2 of 1952 against the insolvent and obtained attachment before judgment of a house of the insolvent (who had not become an insolvent by then) subject to a mortgage. He got a decree in that suit, for Rs. 9,265/ - or so, on 23 -7 -1952, and the interim attachment was made absolute on 23 -7 -1952. At the instance of the mortgagee of the house, the auctioneers, Murray & Co., sold the house. After discharging the mortgagee's dues, a balance of Rs. 3,132 -0 -0 remained. Respondent 2 filed C. S. No. 139 of 1952 on the file of this Court against the insolvent for dissolution of partnership and accounts, and took out a direction against the auctioneers and the mortgagee for depositing the balance of Rs. 3,132 -0 -0 into Court. On 23 -2 -1953, the said amount was directed by this Court to be deposited in Court to the credit of C. S. No. 139 of 1952, to be disposed of, later on, by paying out to the correct party entitled to receive it. On 8 -11 -1952, respondent 3 filed E. P. No. 2388 of 1952, in O. S. No, 632 of 1952, in the City Civil Court, Madras, praying for the issue of an order for depositing the excess proceeds, of the sale held by the mortgagee through the auctioneers on 23 -10 -1952, or, in other words, for bringing the excess of Rs. 3,132 -0 -0 into the City Civil Court, for respondent 3 to take the money out by way of execution and part satisfaction of his decree in O. S. No. 662 of 1952. The City Civil Court Judge passed an order on 10 -11 -1952: "Interim Pro. Order and notice 29 -11 -1952". But, as a matter of fact, it is admitted that the amount was not taken to the City Civil Court or put to the credit Of O. S. No. 662 of 1952 and the E. P. therein before 12 -12 -1952, the date when the insolvency application was admitted. The amount still remains in this Court. The question, under these circumstances, is whether the rights of the O.A. to the amount of Rs. 3,132 -0 -0 should prevail over the rights of respondents 2 and 3 under Section 53, Presidency Towns Insolvency Act, as it stands amended now by Act 3 of 1950.
(3.) RESPONDENT 2 does not contest the application by the O. A. Respondent 3 appears by counsel and contests. I have heard the arguments of the learned O. A. and the learned counsel for respondent 3, and I have no hesitation whatever that the O. A.'s application should be allowed and he permitted to draw out the said amount of Rs. 3132 -0 -0, and respondent 3, the attaching creditor, left to his remedies, like other ordinary creditors, of proving his debt and applying for a dividend before the O. A.;

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