William Comer Petheram, C.J.

1. (Wilson and Tottenham, JJ. concurring).--This appealarises out of an application to stay proceedings in the execution of a decreeof this Court, made by the plaintiff in the present suit, which is a suit toadminister the estate of Prosunno Coomar Surbadhicarry, deceased, who was theperson against whom the decree, which is now sought to be executed, wasobtained, and whose property has been attached under it. The facts are asfollows : On the 4th June 1886, the present respondent, Russick Lall Mitter,sued Prosunno Coomar Surbadhicarry, on the Original Side of this Court, torecover a sum of money, and on the 22nd July 18.86 obtained a final decreeagainst him. On the 5th November 1886 Prosunno Coomar Surbadhicarry died, andon the 18th December 1886 the respondent applied to attach property under hisdecree. On the 21st December 1886 the plaint of Soobul Chunder Law, the presentappellant, was filed, praying that accounts might be taken and the estate ofProsunno Coomar Surbadhicarry administered by the Court.

2. On the 8th and 12th January 1887 certain propertiesbelonging to the estate of the deceased were attached under a decree pursuantto the application of the respondent, dated 18th December 1886, and on the 20thJanuary 1887 a decree in the administration suit was made in favour of theplaintiff, the present applicant, who, thereupon, on the 5th May 1887, movedthe Court to restrain the respondent from selling the attached property. Themotion was rejected by Mr. Justice Trevelyan, and the present appeal is againsthis order of rejection. The sections of the Code which are applicable to thequestions are Sections 213, 276, and 295; and before considering the Englishcases which have been cited, it will be well to examine those sections toascertain whether the English authorities have any bearing on the matter, orwhether the law here is so different to the law in England that they have not.

3. Section 213 provides that, when the estate of a deceasedperson is being administered by the Court, the assets shall be divided amonghis creditors, as if he were living and his estate was being administered underthe insolvent law; and Section 295 provides that, where property has beenattached under a decree, and prior to its realization other decree-holders haveapplied for execution against the debtor, the assets shall be divided amongstthem all, including, of course, the person on whose application the propertywas originally attached. Nothing equivalent to this section is contained in theEnglish law, and the doctrine of the Courts of Equity, which corresponds tosome extent to Section 213, is the doctrine that a decree for administration ofthe estate of a deceased is a decree in favour of all creditors; and, that asall of them are included in the same decree, it would be inequitable that oneshould be in a better position than another under that decree, and thereforethe Court divides the assets among them. But in cases in which any creditor hasobtained judgment before the decree in the administration suit, the EnglishCourts do not interfere under the equitable doctrine, because, as it wouldseem, he has a judgment already, and so cannot have another under theadministration decree. As I said before, the law in this country rests upon thesections of the Code so far as they are applicable, and not merely upon anydoctrine of equity; and it is manifest that, according to the spirit of theCode, it was intended that all debts not actually paid should rank upon theestate, as in insolvency ; and, in my opinion, the only questions are, whetherthe attachments of the 8th and 12th January had the effect of handing over theproperty attached to the creditor, so as to amount to payment; or whether theycreated any charge on the properties entitling the respondent to be paid out ofthem in priority to the other creditors of the deceased.

4. It is scarcely necessary to do more than state the firstquestion, as Section 295 draws a sharp distinction between attachment andrealization, and clearly shows that the legislature did not intend to treat thedebt as paid until the money has found its way into the hands of the creditor.The other question is one of more difficulty, and depends on the constructionwhich-should be placed on Section 276. That section avoids, as against the attachingcreditor, any alienation of the property made by the debtor during thecontinuance of the attachment.

5. It is contended on behalf of the respondent, that inaddition to this the attachment creates an interest in the creditor, whichenables him to-be paid out of the property attached in priority to all othercreditors; and in support of this contention we were pressed with the FullBench case of Anand Chandra Pal v. Panchilal Sarma 5 B.L.R. 691

6. In that case certain property was attached at the suit ofa decree-holder ; afterwards the debtor was declared insolvent and a vestingorder was made. The property was then sold under the attachment, and it washeld that the sale was good, the attaching-creditor having by the attachmentacquired some interest in the property which was not divested by the vestingorder.

7. We are, however, of opinion that the case has noapplication under the present state of the law. Section 240 of the old Code wasnot in the same terms, and was not limited in the same way as Section 276 ofthe present Code, nor did that Code contain any such provision as that inSection 295. We think, therefore, that neither the English cases nor the casesdecided under the old Code are applicable to the present case, and that we mustdeal with the matter as one which is not governed by any authority.

8. As I have before remarked, Section 276 defines certaintransactions which are rendered void by the attachment; but that definitiondoes not include. the claims of other creditors, and we think that as they arenot included in the definition, they are excluded by it, and that theattachment does not create, in favour of the attaching-creditor, any interestin, or charge upon, the property as against other creditors.

9. We come then to the conclusion that, according to thespirit of the law, as contained in the Indian Codes, which we are bound toadminister the assets of the deceased which have not been realized on behalf ofa particular creditor are to be divided among the general body of thecreditors; that there is nothing in the Codes themselves to prevent us fromgiving effect to the spirit of the law, as, in our opinion, the attachmentcreates no charge upon the property; and that, consequently, in the exercise-ofhis discretion, the learned Judge ought to have restrained the execution of thedecree in this case. Accordingly we decree this appeal, and direct that aninjunction do issue in the terms of the motion; all costs to come out of theestate.

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Soobul Chunder vs.Russick Lall Mitter (17.01.1888 - CALHC)