Judgement

Appeal from a judgment and decree of the High Court (June 4, 1912) reversing a judgment and decree of the Subordinate Judge of Burdwan (September 8, 1909).

The respondents granted to certain lessees a lease of a colliery and sold to the lessees the equipment, including engines, boilers, offices, &c. On September 7, 1903, the respondents commenced a suit in the Court of the Subordinate Judge at Burdwan against the lessees to recover royalties due under the lease. On January 7, 1904, a mortgagee from the lessees obtained a decree against them. On June 22, 1904, the respondents obtained a decree in their suit and, on July 13, 1904, obtained thereunder an attachment against the colliery and equipment.

On September 8, 1904, the lessees filed in the High Court at Calcutta their schedule in insolvency, under the Indian Insolvency Act, 1848, and upon that date the usual order was made vesting their estate in the official assignee.

On September 10, 1904, an order was made by the Subordinate Judge staying the sale of the attached property, and on November 23, 1904, the Subordinate Judge ordered that notice should issue to the official assignee to shew cause why his name should not be substituted in place of the judgment debtors, and this notice was duly served. On January 10, 1905, the Subordinate Judge ordered the official assignees name to be substituted for the judgment debtors, and, without any further notice to the official assignee, ordered the issue of a sale proclamation. On March 6, 1905, the sale took place and the respondents, who had obtained leave to bid, purchased the property. On April 18, 1905. the sale was confirmed and subsequently a sale certificate was granted to the respondents stating that they had purchased "whatever right, title, and interest the judgment debtors had to and in the properties."

On May 23, 1905, the High Court made an order in the insolvency proceedings, upon the application of the mortgagee already referred to, granting liberty to the official assignee to sell the property. The official assignee, under this order, sold and conveyed the colliery and equipment, subject to the mortgage, to a purchaser who sold and conveyed to the appellants.

On July 16, 1908, the appellants commenced a suit against the respondents in the Court of the Subordinate Judge of Burdwan to establish their title to possession of the property. The Subordinate Judge, by his judgment delivered on September 8, 1909, made a decree in the appellants favour.

Upon appeal to the High Court, that Court, by its judgment delivered on June 4, 1912, reversed the decision of the Subordinate Judge. The learned judges held that the order for substitution of the official assignees name in place of the judgment debtors was irregular, but that, inasmuch as he had been so substituted and had not taken exception to the procedure, the execution sale of March 6, 1905, must be regarded as having taken place in his presence and as binding upon him, and that, consequently, the sale to the respondents was effective as against him and his purchasers.

De Gruyther, K.C., and Dunne, for the appellants. A judgment creditor has no priority over the official assignee in respect of property attached by him previously to the vesting order Peacock v. Madan Gopal(( 1902) I. L. R. 29 Calc. 428.), which was followed in Kristnasawmy Mudaliar v. Official Assignee of Madras (( 1903) I. L. R. 26 Madr. 673.) and Jitmand Ramanand v. Ramchand Nandram. (( 1905) I. L. R. 29 Bomb. 405.) Under the Indian Insolvency Act, 1848 (11 & 12 Viet. c. 21), s. 49, the Court was, upon the filing of the insolvents schedule, bound to stay the execution proceedings until further order. In that section "may" should be read as "must." The proceedings by which the official assignee was substituted as a party in place of the judgment creditors did not affect the matter. The Code of Civil Pro cedure, 1887, s. 372, only applies where the person substituted is the representative of the p