A B MILLER, OFFICIAL ASSIGNEE OF BENGAL AND ASSIGNEE TO THE ESTATE OF AMBICA CHARAN DUTT Vs. LUKHIMANI DUTT
LAWS(PVC)-1901-3-17
PRIVY COUNCIL
Decided on March 28,1901

A B MILLER, OFFICIAL ASSIGNEE OF BENGAL AND ASSIGNEE TO THE ESTATE OF AMBICA CHARAN DUTT Appellant
VERSUS
LUKHIMANI DUTT Respondents

JUDGEMENT

Maclean, C J - (1.) Two points arise upon this appeal. The facts stated shortly, are these: In 1895 the decree-holder, in a suit to enforce his mortgage, attached certain immoveable property. In 1898, one of the judgment-debtors was declared an insolvent. On the 6 of May 1898 a vesting order was duly made in the insolvency proceedings. Subsequently an order for sale of the property attached was made, and on the 3rd of October, 1898, the Official Assignee intervened, and on the 18 of February 1899, the First Subordinate Judge of 24-Pergunnahs passed the order, which is the subject of the present appeal. By that order he held that the decree-holder had priority in respect of the attached property over the Official Assignee. The latter has appealed. A preliminary objection is taken that no appeal lies in this case, on the ground that the appellant, the Official Assignee, is not the "representative" of the judgment-debtor within the meaning of Clause (c) of Section 244 of the Code of Civil Procedure. The point is not free from difficulty. There are authorities in the Allahabad and Bombay High Courts; the first is the case of Kashi Prasad V/s. Miller (1885) I.L.R. 7 All. 752 and the second, where, however, the points is only incidentally touched upon, is the case of Sardarmal Jagonath V/s. Aranvayal Sabhapathy Moodliar (1896) I.L.R. 21 Bom. 205 (219) which are against the view of the Official Assignee being the "representative" within the meaning of the section. If these authorities be well founded, no appeal lies to this Court.
(2.) It is not necessary for the purposes of to-day to decide the point, but the inclination of my opinion is against the above view. It seems to be a somewhat narrow construction to place on the term "representative," looking at the position in which the Assignee stands to the insolvent. The Official Assignee no doubt represents is one sense, the interests of the judgment-debtor's creditors generally, but can it be justly said that he does not also represent the interests of the Judgment-debtor himself? For instance to the extent of any surplus remaining after paying the creditors, the Official Assignee represents the debtors in respect of that surplus.
(3.) Upon the merits it looks, at first sight, as if there were a conflict between two Full Bench decisions, viz., the one Anund Chunder Pal V/s. Punchoo Lall Soobalah (1870) 14 W.R. (F.B.) 33 in which it was distinctly held that the Official Assignee can only take the interest, which the judgment-debtor had, which in this case would be an interest subject to the rights of the attaching creditor, and the other Shib Kristo Shaha Chowdhry V/s. A.B. Miller (1888) I.L.R. 10 Cal. 150. But there is this distinction between the last mentioned case and the present one; in the former the attachment was before Judgment; here it is after decree. But apart from this distinction, which, perhaps, in principle is not very matertial, my view is that the law, as propounded in the earlier case, ought to be followed on the short ground that the Official Assignee stands in the shoes of the insolvent, and that he takes the property subject to any equities, which are good as against the latter. In other words the Official Assignee cannot be in a better position than the insolvent.;


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