P.B.Mukharji, J. - (1.) This is an application for execution by the decree-holder. The decree-holder obtained her decree on 29-3-1955 against the Fire and General Insurance Company of India Limited. The present application is for realisation of the balance of the decree amounting to Rs. 62,973-10-3. The decree-holder asks to realise this money from the judgment-debtor by attachment of the sum of Rs. 3,53,300/- in G. P. Notes kept in deposit by the judgment-debtor with the Reserve Bank of India, Calcutta, under Section 7 of the Insurance Act.
(2.) The applicant first obtained an 'ex parte' order which later was set aside on the application of the Controller of Insurance on the ground that the procedure laid down by Section 106A of the Insurance Act had not been followed. That section provides that when an application is made to the Court for making any order to which this section applies the Court shall, unless the Controller has himself made the application or has been made a party thereto, send a copy of the application together with the intimation of the date fixed for the hearing thereof to the Controller and shall give him an opportunity of being heard. As the Controller had not this opportunity of being heard and as no copy of the application was sent to him, the 'ex parte' order for attachment of this sum was set aside. The application now comes up before me on merits.
(3.) The whole point of the Controller is based on the language of Section 8 of the Insurance Act which provides that an order for the attachment in execution of a decree of any deposit made by the Insurance Company under Section 7 of the Insurance Act can only oe made where the decree-holder 'has failed to realise in any other way'. Those are the last words of Section 8(1) of the Insurance Act. The language is plain to indicate that the decree-holder before he can proceed in execution to attach this deposit must show that he had failed to realise his decree in any other way. On a construction of Section 8 and specially of the penultimate expression 'has failed to realise in. any other way', it appears to me that the Statutory deposit under Section 7 of the Insurance Act can be attached in execution only as a last resort and where it has been shown by the decree-holder that he could not realise it in any other way. Resort to this Statutory deposit for the purpose of attachment before the decree-holder has exhausted other means and failed thereby to realise his decree is not in my judgment permitted by law. Such deposit under Section 7 of the Insurance Act has certain Statutory privileges as well as obligations, it does not enjoy completely immunity from attachment. But such attachment will only be allowed when there is no other means of realising the decree for which attachment is sought, and where the decree is obtained by a policy-holder in respect of a debt due on a policy. The policy behind this privilege of limited protection is obvious. It is a wholesome provision for the benefit of the entire general body of policy-holders whom the Insurance Companies are expected to serve and this Statutory deposit is a fund earmarked for discharge of liabilities arising on the policies issued by the Insurance Companies. While the deposit enjoys this partial privilege in respect of attachment, it has the limitation of being incapable of assignment or subjected to any charge and cannot be used to meet any liability other than that arising on the policies.;