The main legal point established in the judgment is that the mere filing of a petition for execution does not convert attached money into assets realized in execution, and an order of the Court is necessary for such conversion.

Horwill, J.

1. In O.S. No. 539 of 1934, a suit for money, a certain quantity of indigo belonging to the defendant was attached before judgment; and as this was liable to deterioration it was sold, which meant that the attachment fastened itself to the money. A decree was passed on 14th September 1935. On the same day, a cheque petition was filed, E.A. No. 600 of 1935, praying that a cheque might be issued for the sum attached. Within a fortnight or so, on 2nd October 1935, the judgment-debtor filed an insolvency application, which was admitted two days later. On 10th October, the Official Receiver wrote a letter to the Court, drawing its attention to the fact that the property had become vested in him and asking the Court not to proceed any further. It seems that the defeated claimants had moved the High Court to pass an injunction restraining the decree-holder from drawing the money. In consequence of an endorsement on the cheque petition that it was not pressed for the present, the petition was dismissed on 31st October 1935. On 4th March 1936, the judgment-debtor was adjudicated an insolvent. The money realised by sale of the indigo is claimed by the Official Receiver as a sum of money still belonging to the judgment-debtor, although it was attached. The decree-holder claims the same money by virtue of the exception to Section 51 (1), Provincial Insolvency Act, as being assets realised in the course of execution, which are exempt from the general rule that no decree can be executed against the property of the debtor. Both the Courts below held in favour of the decree-holder and dismissed the application of the Official Receiver for the issue of a cheque. I have perused the few endorsements on the back of E.A. No. 600 of 1935; and it does not appear that anything was done at all on the petition, except to adjourn it from time to time arid finally to dismiss it. It is therefore difficult to understand how the sum of money in question can possibly be said to have been realised in execution, when nothing was done in execution beyond the filing of a petition. It would also seem that Section 51 will not apply; because execution of the decree had not issued against the property, for execution cannot issue unless there is an order to execute, or on an execution application some order has been passed from which such an order can be inferred. The trial Court seemed to think that the mere filing of a petition was enough to convert the amount lying to the credit of the suit into assets realised in execution; but there can be no doubt at all that the filing of an execution petition cannot convert a sum into assets realised in execution or effect a transfer of the money from the credit of a suit to that of an execution petition. Such a conversion or transfer can only be by an order of Court. The lower appellate Court seems to base its decision merely on equitable considerations, saying that if there had not been an order of the High Court granting an injunction against the drawing of the money, the decree-holder would have drawn the money and that he ought not to suffer because of this injunction order.

2. As it seems so clear that nothing was done in execution at all and that money was not realised in execution, there seems to be little more to say; but as the matter has been discussed at length and various decisions quoted, it is perhaps desirable that a few words be said about the cases cited. One very much in point is Nachiappa v. Subbier A.I.R 1923 Mad. 505. In that case, as in this, some property was first attached before judgment which was subsequently converted into cash; and three other decree-holders sought to attach it. The question was whether they could divide the assets before the person who had attached it before judgment. The meaning of the words "assets held by a Court" and "before receipt of such assets" came up for consideration; and the learned Judges had to decide at what moment a sum of money under attachment