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TMI Blog1941 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The prayer for attachment was allowed and the attachment was effected on September 15, 1937. The Benares Bank put forward the objection that the money did not belong to the judgment debtor. The Subordinate Judge allowed this objection and withdrew the attachment on February 22, 1938. The matter came up to this Court which by its order dated November 18, 1938, restored the attachment and directed that garnishee proceeding under order XXI, rule 63C, of the Civil Procedure Code be started. Mst. Debeshwari Babuasin had died on April 17,1937, leaving a will in favour of her daughters-in-law Biseshwari and Tarkeshwari. These, ladies filed on January 11, 1938, a claim under order XXI, rule 58, of the Civil Procedure Code alleging that the attached money belonged to their mother-in-law Mst. Debeshwari Babuasin and on her death they became entitled to the money by virtue of the will executed by her. They had already applied for probate of the will in the Court of the District Judge of Darbhanga. The claim case, however, was eventually dismissed for default on January 28, 1939. On January 30, 1939, the decree-holder filed an application for issue of notice on the Benares Bank unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the money. I give one chance. Let the Bank deposit the attached money in Court by November 16, 1939". On November 18, 1939, the Bank asked for time to obtain stay order from the Allahabad High Court. Time was allowed till December 1, 1939. On the latter date the execution cases were stayed pending further orders of the Allahabad High Court. On January 15, 1940, the decree-holder filed a petition stating that the stay order had been vacated by the Allahabad High Court and praying that the Bank be directed to deposit the attached amount in Court. A letter was written accordingly to the Bank. On February 12, 1940, the Allahabad High Court passed an order for winding up and appointed a liquidator. On February 28, 1940, the Bank intimated this fact to the executing Court. The decree-holder hen on April 26, 1940, obtained leave from the Allahabad High Court to proceed against the Official Liquidator. On May 21, 1940, the decree-holder filed a petition in the excuting Court for adding the Official liquidator of the Bank as a party. This was allowed. On May 28, 1940, the Court issued notice on the Official Liquidator to deposit the attached amount in Court. On July 12, 1940, the liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court. Being dissatisfied with this order, the decree-holder has filed these appeals. Sir Manmatha Nath Mukherji on behalf of the appellant contends, in the first place, that the attachment having been effected and order having been passed on the Bank to deposit the money in Court long before the winding up order was passed, the Official Liquidator took the assets of the Bank subject to the attachment. He relies on the decision in Amrita Lal Kundu v. Anukul Chandra Das [1916] 20 C.W.N 358 . In that case certain moveable property of a company with limited liability was attached in execution of a decree, and before it was sold the company went into voluntary liquidation. The liquidator sought to stay the sale and release the attachment. This was refused. The property was then sold and the sale proceeds brought into Court. It was held that the distribution of the proceeds in Court must be governed by the provisions of the Civil Procedure Code, and that the attachment and sale could not be set aside at the instance of the liquidator. Reliance is also placed on the case of the Official Liquidator of the Kayasth Trading and Banking Corporation v. Satnarain Singh [1921] 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the decree-holder may adopt the procedure laid down in order XXI, rules 63A and 63B. Under rule 63A "The Court on the application of the decree-holder may order a notice to issue calling upon the garnishee to appear before the Court and show cause why he should not pay into Court the debt due from him to the judgment debtor". Rule 63B (1) provides : "If the garnishee does not pay into Court the amount of the debt due from him to the judgment debtor, and if he does not appear in answer to the notice issued under rule 63A, or does not dispute his liability to pay such debt to the judgment-debtor, then the Court may order the garnishee to comply with the terms of such notice and on such order execution may issue against the garnishee as though such order were a decree against him." No order under rule 63B (1) appears to have been passed against the Bank. The decree-holder for the first time made an application for an order under this rule on July 24, 1940, that is, after the Bank had gone into liquidation. It is thus clear that before the Bank went into liquidation there was no valid order by which it could be compelled to deposit the attached money in Court. Sir Manmat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that this observation was a mere obitor and the distinction was also recognised that if there had been an order of the Civil Court upon the District Board to send the money to the Court, the money could not be regarded as "assets realised" till it reached the Court. This case, therefore, is really no authority for the contention advanced. It is not disputed that an attachment by itself gives no preferential right. The orders which were passed from time to time by the executing Court calling upon the Bank to deposit the attached money in Court did not and could not improve the decree-holder's position in any way. His position still is that of an unsecured creditor. The Bank having gone into liquidation, he should, if he wishes to pursues his remedy against the Bank, proceed, according to the provisions of the Companies Act. His rights will be controlled by section 229 of the Companies Act. In other words, he must take pro rata, and await winding up proceedings. The next contention of Sir Manmatha Nath Mukherji is that the learned Subordinate Judge erred in holding that the leave of the Allahabad High Court to proceed in execution against the Official Liquidator is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1911, and their solicitor applied on February 25, to the company's solicitor to obtain and send to him the company's cheque in payment of the judgment debt. The plaintiffs' solicitor was led to believe by the solicitor and by a director of the company that a cheque would be sent in a few days, and in consequence he delayed issuing execution, but he was not told, and did not know that on February 25 a notice had been sent out convening a meeting of the company for March 6, for the purpose of passing a resolution for the voluntary liquidation of the company on the ground that the company was unable to pay its debts. The meeting was held on March 6, and the resolution for voluntary liquidation was passed. On the same day the judgment-debt not having been paid, the plaintiffs issued execution." Upon these facts it was held that "the postponement of execution had been caused by a trick on the part of the defendant company, and that the plaintiff, therefore, ought not to be prevented from proceeding with their execution." In the second case the facts were : "The manager of a company fraudulently and without authority accepted bills of exchange in the company's name, and upon thos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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