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TMI Blog1935 (4) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... gth in the judgment under appeal, and I need not repeat them in full. Talati obtained against Cooper a decree for ₹ 91,000 on February 18, 1929. It was a consent decree, and a suit to set it aside subsequently failed, so that the decree stands, and it is in connection with the execution of that decree that the question in this suit arises. The property on which, execution is said to have been levied is of this nature. Cooper had an Immovable property at Champagalli, and he entered into a contract to sell half of it to a man named Narandas. A suit for specific performance of that contract was brought by Cooper against Narandas in the year 1923, and this Court made a decree in favour of Cooper. That decree was reversed on appeal, but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and you are hereby directed to pay the Sheriff of Bombay the sum of ₹ 1,90,000 and ₹ 22,456 in order that the same may be applied in satisfaction of the decree in this suit for that amount including costs of execution. Now those two sums were the purchase money and interest and other moneys payable on completion under the contract for the sale of half of the Champagalli property, and there is not in that order any attachment of the costs payable under the decree of the Privy Council. The attachment merely relates to moneys payable under the contract, and no other order for attachment has been produced. That notice and order combined recites that the decree for money in suit No. 1495 of 1923 has been ordered to be attached, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for adjudication would have the effect of stifling Cooper's suit to have the consent decree of 1929 set aside, and the Court of Appeal took the view that, inasmuch as that suit might fail, the petition ought to be kept on the file, so that an order could be made upon it if the consent decree were finally upheld, which, as I have said, eventually happened. After Cooper's suit had been dismissed, and an appeal had also been dismissed, the petition for insolvency was restored, and on March 27, 1933, Cooper was adjudicated insolvent, and this suit was commenced on September 8, 1933. So that, on the facts, putting it shortly, the question is whether moneys paid by the Court Receiver to the execution creditor between the date when the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restricted so as to exclude notice of the presentation of an insolvency petition on which adjudication may follow. Here the petition had been presented- true it had been at the critical date dismissed-but the order dismissing it was under appeal, as Talati well knew, seeing that it was his own appeal, and as soon as that appeal resulted in the petition being restored, it is plain, to my mind, that the case falls within Section 53(1), and that Talati had notice of the presentation of an insolvency petition to which that section relates, So that the payment is clearly bad under sub-s. (I) as against the Official Assignee, and the only other suggested answer to the plaintiff's case is under Sub-section (2) of Section 53, which provides : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taching Court was situated, that is to say, an attachment in Madras and a judgment of. insolvency in Secunderabad. That is an entirely different question to the question whether attachment of property constitutes the attaching creditor a secured creditor under Section 53(2). In my opinion, the judgment appealed from was right, and the appeal must be dismissed with costs. C.P. Blackwell, J. 2. As regards the first point, Mr. Khergamvalla asks us to treat Sub-section (1) of Section 53 of the Presidency towns Insolvency Act as containing words which are not present in the section. He asks us to hold that the meaning of the section is that there must be an existing insolvency petition on the file of this Court. The section contains no s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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