S.G. Sale, J.

1. In this case the husband of the defendant was adjudicatedan insolvent, and the usual order was made vesting the estate in the OfficialAssignee. Subsequently the insolvent died. No schedule of debts was filedprevious to his death, nor has any been filed since. After the death of theinsolvent a creditor brought a suit in the Calcutta Court of Small Causesagainst the defendant "as his widow, heiress, and legalrepresentative," and obtained a decree "to be levied out of theassets of the deceased in her hands."

2. An application to set aside this decree is now made onbehalf of the defendant, under Section 622 of the Civil Procedure Code, on thefollowing grounds as stated in the petition : (1) That there is no cause ofaction against the defendant, her husbands estate being vested in the OfficialAssignee; (2) that the Official Assignee, in whom the estate is vested, was anecessary party to the suit.

3. The questions argued before me were somewhat different inform. First, it was said that the defendant, though admittedly the widow andheiress of the deceased insolvent according to Hindu law, could not, for thepurposes of the suit, be treated as his legal representative, seeing that hisestate was in his lifetime, and still continues to be, vested in the OfficialAssignee.

4. The second contention on behalf of the petitioner wasthat the Official Assignee was a necessary party to the suit, and that nodecree as against the estate could be made in his absence; and that in any casethe form of the decree was wrong.

5. The person who has the right to represent the estate of adeceased person is in the Civil Procedure Code called his representative orlegal representatives : see Sections 244 and 252. There is no doubt that, underordinary circumstances, the widow and heiress of a deceased person would be hislegal representative within the meaning of Section 252. In the case of GreenderChunder Ghose v. Mackintosh I.L.R Cal. 897 Pontifex, J., at p. 908 of thereport, expresses the opinion that the term "legal representative"would include the widow and heiress.

6. Does the fact of the insolvency of the husband and theexistence of the vesting order affect the widows position as legalrepresentative

7. Can it be said that the vesting order makes the OfficialAssignee the legal representative of the deceased insolvent

8. Section 252 does not seem to contemplate such a result.That section provides that a decree obtained against the legal representativeof a deceased person may be executed as if it had been obtained against suchdeceased person personally to the extent of the property of the deceased personcome to his hands if not duly applied by him. This provision is obviouslyinapplicable to the Official Assignee who is not accountable for any assetsvested in him as such, except to the Insolvent Court, subject to whose orderssuch assets are held by him, and against whom, therefore, in his officialcapacity, no personal execution can issue. The section does not contemplate theinsolvency of the deceased party, and excludes the idea of the OfficialAssignee being regarded as the legal representative within the meaning of thesection. Moreover the fact that the estate of the husband is not in the widowshands, but in the hands of third parties, is no bar to the making of a decreeagainst hex in her representative character-Girdharlal v. Bai Shiv I.L.R. 8Bom. 309.

9. It has also been held that the Official Assignee is not arepresentative of a deceased insolvent within the meaning of Section 244 of theCode. Clause (c) of Section 244 enables the Court executing a decree todetermine questions arising between the parties to the suit in which the decreewas passed or their representatives". Where a judgment-debtor, afterattachment of his property, was declared an insolvent, and the OfficialAssignee, in whom the estate had vested, applied to have the attachmentremoved, the lower Court treated the matter as one to be dealt with underSection 244. On appeal it was held that the Official Assignee cannot beconsidered to be a representative of a judgment-debtor within the meaning ofSection 244, and that he should be treated as a third party-Rashi Prasad v.Miller I.L.R All. 752. From these considerations it appears to me quite clear,that, on the death of the insolvent, his widow, the defendant, became his legalrepresentative within the meaning of Section 252, and that the existence of thevesting order in no way affects her position as such representative.

10. It was open to the plaintiff as a creditor of thedeceased insolvent, either to proceed to prove his claim in the insolvencyproceedings, or to institute a suit against the widow as the legalrepresentative of his debtor. Having adopted the latter course, no proceedingcould be taken under Section 49 of the Insolvent Act to stay the suit, inasmuchas no schedule of the insolvents debts and credits has been filed. The suittherefore having proceeded and a decree obtained, the second question arises,viz., whether the decree is open to objection on the ground that it wasobtained in a suit not properly constituted, the Official Assignee not being aparty to such suit.

11. The case of In re Hunt Monnet and Co., Ex parte Gamble(Official Assignee) v. Bhola Gir 1 Bom. H.C. 251 seems to show that, as regardssuits pending against a person at the time of his insolvency, the OfficialAssignee is not a necessary party, and that such suits may properly becontinued against the insolvent in the absence of the Official Assignee,notwithstanding the insolvency. In that case it appeared that several creditorshad instituted suits against a certain firm. After decrees had been obtained inmost of the suits, but while some suits were still pending, the firm wasdeclared insolvent. The usual vesting orders wore made, by which the estate andcredits of the insolvent firm and the separate estate of an insolvent partnerwere vested in the Official Assignee. On the same day, and also subsequently,the property of the firm was attached at the instance of various judgment-creditors.The Official Assignee then applied not to lay on any more attachments, and tohave himself added as a party under Section 73 of Act VIII of 1859, not only inthe suits which were then pending, but also in the suits in which decrees had alreadybeen made. After an elaborate exposition of the law, the result as to howinsolvency affects the relative rights of the Official Assignee and thecreditors of an insolvent as to suits pending at the date of insolvency is thusstated (p. 257 of the report): "The result then is that as to suitspending at the date of the vesting order, in which the insolvent is plaintiff,the law in England and India is the same, viz., that the Official Assignee may,on certain specified conditions, carry on such suits for the benefit of thegeneral body of creditors, in substitution of, but not as co-plaintiff on therecord with, the insolvent. As to pending suits in which the insolvent is adefendant, the law in India is the same as the law in England, except that underSection 49 of the Indian Insolvent Act, the Courts in India are speciallydirected, after the filing of the insolvents schedule and before hisdischarge, to stay suits and all proceedings therein founded on any debt ordemand inserted in the schedule, on proof to the Courts satisfaction that thedebt or demand so inserted in the schedule is identical with that which formsthe subject of the suits, etc., which they are asked to stay. As to any powerof continuing such actions in substitution of the insolvent, or of being made aparty to the suit in addition to the insolvent defendant, the Official Assigneein India has not such power, any more than the corresponding functionary inEngland." Then as regards suits in which a decree has been made against adefendant prior to his insolvency the judgment proceeds thus: "Neither inEngland nor in India have the assignees of an insolvent ever been held to havethe power, after judgment and decree, to get themselves made parties to thesuit, with a view of moving for a new trial, setting aside the judgment, or forany other purpose whatsoever."

12. As regards the question of the position of the OfficialAssignee as to suits instituted against the insolvent or his representativeafter insolvency, no schedule having been filed, there is a recent decision ofthis Court which is in point. In Miller v. Budh Singh Dudhuria I.L.R. Cal. 43the facts were as follows : A person was adjudicated an insolvent, and an orderwas made vesting his estate in the Official Assignee, but no schedule of debtsand credits was filed. A suit for money was then brought against the insolventin a mofussil Court, and subsequently, on the application of the plaintiff, theOfficial Assignee was added as a party defendant. The Court found that theamount claimed was due by the insolvent, and directed payment by the OfficialAssignee. On appeal to this Court, it was held that the Official Assignee hadbeen wrongly made a party, and that the judgment against him was in a formwhich would entitle the judgment-creditor to be paid out of the estatepreferentially, which was also wrong. The Chief Justice says: "The firstorder putting Mr. Millers name on the record was in our opinion wrong. Thereis nothing in the Insolvency Act which enables a suit of this kind to becontinued against the Official Assignee when the defendant has becomeinsolvent, and this is not the case of the assignment of any interest withinthe meaning of Section 372 of the Code of Civil Procedure, such as would enablethe plaintiff to proceed against the assignee. We think, therefore, that theSubordinate Judge was wrong in placing Mr. Millers name on the record; but hisname having been wrongly placed there, we think that the judgment against himin this form must be wrong, and the reason is that such a judgment would workmanifest injustice and prevent the beneficial operation of the Insolvencysections of the Act, because a judgment of this kind as against Mr. Millercomes to this, that he is to pay the money out of the estate in his hands, andthat this man, the plaintiff, is entitled to get the whole of his claim, andthat it is to be paid in full if the whole estate of the insolvent issufficient to pay him. This is clearly wrong, and consequently this appeal mustbe allowed and the judgment of the Subordinate Judge and the order substitutingMr. Millers name on the record must be set aside, and the case remitted to theSubordinate Judge for trial as against the original defendant."

13. That was the case of a suit instituted against theinsolvent after the estate had vested in the Official Assignee. The presentsuit was brought after the death of an insolvent against his representative. Isee no essential difference between the two cases, and the principle whichunderlies the decision in the one case applies equally to the other. It is truethat there have been instances in this Court where suits have been brought formoney claims against both the insolvent and the Official Assignee asco-defendants. There are also cases where on the defendant becoming aninsolvent pending the suit, the Official Assignee has been added as a partydefendant, on the application of the plaintiff. But in all these cases thedecree has been as against the debtor only, and as regards the decretal amountliberty has been reserved to the plaintiff to rank as a creditor in theinsolvency.

14. This practice has been adopted, not on the ground thatthe Official Assignee is a necessary party to these suits, but rather with theobject of giving the Official Assignee notice of the claim and to prevent anyquestion arising as to the bond fides of the proceedings. There are also casesin this Court where such suits have been allowed to proceed to a decree againstthe judgment-debtor, notwithstanding his insolvency in the absence of theOfficial Assignee, liberty being reserved in the decree to thejudgment-creditor to prove in insolvency for the amount of his judgment debt.

15. The cases which I have cited in the Bombay Court and inthis Court are sufficient I think to establish the proposition, that theOfficial Assignee is not a necessary party in any suit to recover a money debtfrom a person who is either an insolvent at the time the suit is instituted orbecomes insolvent pending the suit. But it is also clear that the decree madeas against an insolvent under these circumstances, should be restricted in formso as not to allow the judgment-creditor, by means of execution, to obtain anadvantage over the general body of creditors. The decree in the present case isfree from objection, except as to the words "to be levied out of theassets of the deceased in her hands."

16. The defendant has denied assets, but even should therebe assets in her hands they are still vested in the Official Assignee, and arebeyond the reach of any creditor, except through the machinery of the InsolventCourt. If there are outstanding assets, the Insolvent Court, if moved, wouldimmediately proceed to get in such assets.

17. Under this decree in its present form, the plaintiff wouldbe entitled to obtain execution against the defendant, and, if there should beassets in her hands, to obtain payment thereout in preference to the othercreditors. This would be a proceeding entirely contrary to the policy of theInsolvent Act, and contrary also to the policy of the Civil Procedure Codewhich favours prorata distribution of a debtors assets among all hiscreditors. The decree should be in the form adopted in this Court under similarcircumstances. The words "to be levied," etc., should be omitted andliberty reserved to the judgment-creditor to prove for the amount of his decreein the Insolvent Court, with a note that execution of the decree is stayedpending the insolvency.

18. There must be an order therefore varying the decree inthe manner indicated.

19. Each party must bear his own costs of the application.

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Chandmull and Ors.vs. Ranee Soondery Dossee and Ors.(28.08.1894 - CALHC)