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TMI Blog1933 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... t-debtors. At that time the judgment-debtors were the plaintiffs in a suit then pending in the Madras High Court for partition of certain joint family property between the plaintiffs' and the defendants' branches of the family. The Madras partition suit had been 'instituted in 1922, and on 5th December 1932 a preliminary decree by consent had been made, declaring inter alia certain properties and business assets involved in the suit to be the exclusive properties of the plaintiffs' branch and directing certain interim payments of money to be made by the defendants to the plaintiffs. The decree further directed certain arbitrators to take the joint family account and to partition the joint family property between the two* bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent appeal. On 4th March 1929 the appellant's father took out a Judge's summons in the High Court of Madras -and started the present proceedings against the parties to the Madras partition suit, for leave to execute the decree attached by him. The proceedings were opposed by the defendants in the partition suit and by the Official Receiver of Secunderabad, who was then made a party plaintiff to the partition suit in substitution of the insolvents, the two surviving plaintiffs in that suit, and who is the active respondent in the present appeal. It is first necessary to. consider whether, in the Madras Court, the adjudication order is to be regarded as the order of a foreign Court. Both the Courts below have held that it is to be so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attaching creditor which, according to British Indian law, could prevail over the receiver in insolvency, and that it made no difference that the adjudication order was made by a foreign Court. Their Lordships do not agree with the reasoning or conclusion of the appellate Court. The question is one of comity between States and not one of the municipal bankruptcy codes of either country. The rule of private international law is clearly laid down in Galbraith v. Grimshaw (1910) AC 508, as regards moveable estate, for it is settled that no adjudication order is recognized as having the effect of vesting in the receiver any immovables in another country. The reason for the rule is stated in the speech of Lord Dunedin in Galbraith's case (at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose Of answering a particular claim -a claim which in due course would have ripened into a right. With this inchoate right the Scottish Court had no power to interfere, nor has it even purported to do so. 5. In an earlier passage Lord Macnaghten had said: A creditor of the bankrupt having duly obtained an attachment in England before the date of the sequestration cannot, I think, be deprived of the fruits of his diligence. 6. In the present case, at the date when the foreign adjudication order' was made, the appellant was entitled to the benefit of his prior attachment of the decree in the Madras partition suit. The decree was thereby earmarked for the purpose of answering the Bombay money decree, and that inchoate right would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt or assets in question situated in England If any part of that which the bannrupti could have then assigned is situated in England, then the trustee may have it; but he could not have it unless the bankrupt could himself have assigned it. 7. It is clear in the present case that, by reason of Section 64, the bankrupts could not have assigned their right in the decree which had been attached. This test renders it irrelevant to consider whether the attachment created a lien or charge or conferred title, and the cases relating to British Indian bankruptcies relied on by the learned Judges of the appellate Court, have no bearing on the present question. In Kristnasawmy Mudahar v Official Assignee of Madras (1902) 26 Mad 673, the Court appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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