The monthly pension instalment becomes the property of the insolvent and vests in the Court under sec. 28 of the Provincial Insolvency Act.

JUDGMENT

Derbyshire, C.J. - This is an appeal by a creditor against an order of the District Judge of Hooghly in Insolvency Case No. 52 of 1935. The creditor the Petitioner in the proceedings before the District Judge asked for an order upon the insolvent to pay and deposit in the Court within the first week of each month a sum of Rs. 30 or to pass such other order as the Court deemed it and proper. The Judge refused to pass the order asked for or any other order. The insolvent, Santosh Kumar Pal, was formerly in the employ of the Imperial Bank of India, Ltd., but retired from their employment in 1935. A short time after his retirement he was adjudicated an insolvent--whilst, the insolvent was in the employment of the Imperial Bank of India he became contributory to the Bank's pension scheme and on his retirement he became entitled to a pension under the scheme of Rs. 62-13-11 pies per month. That monthly sum has been paid to the insolvent by the Bank.

2. The creditor, Appellant herein, stated in his petition to the Judge that the insolvent had applied for his discharge, but nothing had been realised for the benefit of the creditors. He asked that Rs. 30 per month should be deducted out of the pension and kept in deposit in the Court for the purpose of ultimate distribution among the creditors; he further stated that the insolvent's family consisted of the insolvent and his wife only.

3. A copy of the Bank's Employees' Pension Fund Rules and Regulations has been laid before us and it appears from it that a deduction is made each month from the employee's salary and paid into the Pension Fund. A contribution in respect of the employee is also made by the Bank and paid into the Pension Fund. There is also added to the Pension Fund in respect of each employee interest upon the contribution of the employee. These sums of money form part of a larger fund which is invested by the Bank and available for the payment of the employees' pensions. Certain terms are laid down in the Rules as to the conditions upon which the employees become entitled to draw pension. In this case the employee insolvent served for the period prescribed by the rules, satisfied the conditions laid down in the Rules and became entitled upon his retirement in 1935 to a pension, as stated, of Rs. 62-13-11 pies each month. Rule 12 provides:

A pension shall be regarded as only elementary and therefore not assignable. It shall ipso facto cease in the event of an assignment being made.

4. Rule 13 provides:

Pensions shall begin to accrue on the first day succeeding that of retirement and shall be payable monthly to the beneficiary personally or to his order when supported by a life certificate bearing his signature and attested by a Magistrate, Justice of the Peace or banker.

5. The Rules form the terms of the contract between the Bank and the pensioner under which the pensioner receives his pension.

6. It is contended for the Appellant creditor that as and when the insolvent pensioner receives his monthly instalment pension, that monthly instalment becomes the property of the insolvent and so vests in the Court or the receiver under the provisions of sec. 28 of the Provincial Insolvency Act and that under the Act the Court ought to have made the order asked for.

7. Sec. 28 (1) of the Act provides:

On the making of an order of adjudication, the insolvent shall aid to the utmost of his power in the realization of his property and the distribution of the proceeds among his creditors.

8. Sub-sec. (2):

On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided, and shall become divisible among the creditors.

.......

9. Sub-sec. (4):

All property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the Court or receiver, and the provisions of sub-sec. (2) shall apply in respect thereof.

10. Sub-sec. (5):

The pro