Full Judgment
B.K. Mukherjea, J.
1. On hearing the learned advocates for the parties, it seems to us that the appellants who are sought to be substituted as heirs of the deceased Ashutosh Laik, insolvent, are neither proper nor necessary parties to the execution proceedings. The deceased Ashutosh Laik was adjudicated an insolvent under the Presidency Towns Insolvency Act on 2nd February 1934, and all his properties vested in the Official Assignee. On 15th March 1938, the decree-holders respondents obtained from this Court in its insol vency jurisdiction permission to proceed in execution against the properties of the insol. vent in the hands of the Official Assignee. In pursuance of this permission, execution proceedings were started, and pending these proceedings, Ashutosh Laik died. The heirs including his three sons and his wife do not claim any interest in these properties as heirs of the insolvent. The widow claims certain interest as an under-tenure holder by a deed which was executed several years prior to the execution proceedings and which was not challenged by the Official Assignee. There is another claimant in the shape of the deity, and the deity claims an interest in the properties on the strength of a certain arpannama.
2. In our opinion, the proper procedure would be to strike out the names of the four heirs of deceased Ashutosh Laik from execution proceedings altogether, and it must be taken that they disclaim all interest in these properties as heirs of Ashutosh Laik. The decree holders would be entitled, provided that the leave obtained by them, allows them to do so, to proceed against the properties of the insolvent in the hands of the Official Assignee. If the Official Assignee disclaims any interest in these properties, the decree-holders may take such steps, if any which they are entitled in law to take. If any of the properties are attached which the deity or the widow claims, on the strength of antecedent transactions which are not affected by the insolvency proceedings, they will be entitled to put forward their claims or take other steps as they may be advised to take. The Order of the Court below making substitution is set aside. This Order will govern all the three appeals before us. We make no Order as to costs in these appeals.
Blank, J.
3. I agree.