Seena Soona Vana & Co. V. Assignee Of Insolvent Case Of Segu Mohamadu

Present: Lyall Grant J. and Maartensz A.J.    1929

SEENA SOONA VANA & CO. v. ASSIGNEE OF INSOLVENT CASE OF SEGU MOHAMADU.

126-D. C. (Inty.) Colombo, 30,964.

Insolvency-Seizure of money in Court-Adjudication of judgment-debtor as insolvent-Attachment of money-Payment to judgment-creditor-Ordinance No. 7 of 1863, ss. 56 and 111.

Where money, lying in Court to the credit of a person, is seized in execution of a decree against him in another action, such seizure will not be effective against an assignee in insolvency of the judgment-debtor until the money is drawn by the attaching creditor.

APPEAL from an order of the District Judge of Colombo. The facts appear from the judgment.

Thiagalingam (with Rajapakse), for appellant.

Weerasooria, for respondent.

October 18, 1929. MAARTENSZ A.J.-

The plaintiff in this action sued the defendant for the recovery of a sum of Rs. 1,039.41 and obtained judgment on February 18, 1929.
On a writ issued the same day the Fiscal forwarded a written notice under section 229 of the Civil Procedure Code to the District Judge of Colombo to withhold from paying the judgment-debtor a sum sufficient to satisfy the amount of the writ out of the money lying to the credit of case No. 30,395 of the District Court of Colombo.

The judgment-debtor was adjudicated an insolvent on the same date.

The plaintiff, having obtained a return to his writ on the day if issued, moved the Court in this case to transfer a sum of Rs. 1,123.11 from case No. 30,395 to the credit of this case. This motion should properly have been made' in case No. 30,395. But in view of the conclusion I have come to it is immaterial in which case the motion was made, nor is it material whether the seizure was effected before or after the judgment-debtor was adjudicated insolvent.

The motion was opposed by the assignee, and the plaintiff appeals from the order of the District Judge disallowing his application.

The contention in appeal shortly stated was that neither section 56 nor section 111 of the Insolvency Ordinance applied to the seizure as the money could not be sold in execution and that the money, therefore, became immediately on seizure the property of the plaintiff.

I am unable to accept this contention. Section 70 of the Insolvency Ordinance, 1853, enacts that: "When any person shall have been adjudged an insolvent, all his personal estate and effects,

present and future, wheresoever the same may be found or known and all property which he may purchase, or which may revert, descend, be devised or bequeathed, or come to him before he shall have obtained his certificate, and all debts due or to be due to him wheresoever the same may be found or known, and the property, right , and interest in such debts, shall become absolutely vested in the assignee for the time being, for the benefit of the creditors of the insolvent, by virtue of their appointment."

Section 56 enacts that: " . . . . and all executions and attachments against the lands of any insolvent bona fide executed by seizure, and all executions and attachments against the goods and effects of any insolvent bona fide executed and levied by seizure and sale before the date of the filing of such petition, shall be deemed to be valid notwithstanding any prior act of insolvency by such insolvent committed, provided the person so dealing with or paying to or being paid by such insolvent, or at whose suit or on whose account such execution or attachment shall have issued, had not at the time of such payment, conveyance, contract, dealing, or transaction, or at the time of such execution or levying such execution or attachment, or at the time of making any sale thereunder, notice of any prior act of insolvency by him committed-"

Section 111 enacts that: "No creditor having security for his debt, or having made any attachment of the goods and effects of the

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