Authored By : Lancelot Sanderson, H. Walmsley

Lancelot Sanderson, C.J.

1. This is an application by the plaintiff respondents thatthe appeal should be dismissed and that an order should be made directing theRegistrar to pay to the attorneys for the plaintiff respondents the sum of Rs.21,850, and any interest that may have accumulated.

2. It appears that the plaintiffs obtained a decree for thatsum on the Original Side of this Court.

3. An appeal was preferred by the defendants ChowthmullMaganmull to this Court: and, an application was made for stay of execution. Aconsent order was made on the 29th of August 1923 in these terms: "Byconsent the execution will be stayed pending the hearing of the appeal upon thedefendant appellant paying into Court, the decretal amount with interest, thetotal being twenty one thousand eight hundred and fifty, on or before the 14thof September 1923. If the money is not so paid, the stay will be removed Theplaintiff respondent will be at liberty to take out the money, if so deposited,on giving security to the satisfaction of the Registrar."

4. The appellants deposited the money in Court in accordancewith the order.

5. It appears that the plaintiffs then taxed their bill ofcosts and were taking steps to realise the taxed bill by means of execution:and, an order was made that the amount of the taxed bill should be paid on orbefore the 17th April 1924. On the 16th of April, the appellants wereadjudicated insolvents. On the 98th of April the attorneys for the plaintiffswrote to the Official Assignee informing him that the appellants had beenadjudicated insolvents and requesting him to let them know whether he intendedto prosecute the appeal or not. The letter concluded in these words "Ifyou decide to go on with the appeal please furnish security for costs in termsof the order of this Court dated the 24th March 1924". That letter was notanswered by the Official Assignee and this application was made yesterday week.It was adjourned in order that the Official Assignee might appear and statewhat was the position as far as he was concerned, and what course he intendedto pursue.

6. The learned Official Assignee has appeared and stated thathe is not in a position to give any security for the costs of the appeal and,as I understand, he is not in a position to prosecute the appeal. The result isthat the appeal is dismissed with costs as prayed.

7. The farther question arises with reference to the secondpart of the application, namely the application that the Registrar should bedirected to pay to the plaintiffs attorneys the sum of Rs. 21,850 and anyinterest which may have accumulated in part satisfaction of the decree.

8. The learned Official Assignee argued that although thesum was paid into Court as a condition for obtaining a stay of execution, stillthe sum of Rs. 21,850 was property belonging to the insolvents within themeaning of Section 52(2)(a) of the Presidency Towns Insolvency Act, 1909, atthe commencement of the insolvency and, accordingly he argued that the sumshould be available for distribution amongst the creditors of the insolvents.

9. On the other hand, the learned Counsel for the plaintiffsargued that the sum in question did not belong to the insolvents at the date ofthe commencement of the insolvency and did not become vested in the OfficialAssignee for the benefit of the creditors.

10. In my judgment the argument of the learned Counsel forthe plaintiffs is correct.

11. In my judgment the effect of the order was that themoney was paid into Court to give security to the plaintiffs that in the eventof their succeeding in the appeal they should obtain the fruits of theirsuccess. See Bird v. Barstow [1892] 1 Q.B. 94. It may be put in other words,viz., that the amount paid into Court was the money of the plaintiffrespondents subject to their succeeding in the appeal and thereby showing thatthe decree in their favour by the learned Judge on the Original Side wascorrect. The words which were used by Lord Justice James in the case of Exparte Banner, in re Keyworth (1874) L.R. 9 C. A. 379 are applicable to thiscase. The learned Lord Justice said that the effect of the order was that themoney which was paid into Court belonged to the party who might be eventuallyfound entitled to the sum.

12. The result therefore is that the appeal must bedismissed with costs which will include the costs of this application--(allsuch costs to be provable in the insolvency)--with a direction to the Registrarto pay the sum of Rs. 21,850 with the interest which has accrued in respectthereof to the attorneys for the plaintiff respondents.

H. Walmsley, J.

13. I agree.

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Chowthmull Maganmullvs. The Calcutta Wheat and Seeds Association (27.05.1924 - CALHC)