JUDGMENT - PAREKH N.K., J.:—By this report dated 11th April, 1986, the Official Assignee seeks an order that in view of the order of adjudication dated 18th of November, 1983, passed against the judgment debtor (hereinafter referred to as the insolvent), the petitioning creditors Smt. Durga Mohan Joshi be directed to pay to the official Assignee the aggregate sum of Rs. 1,35,000/- which was deposited by the insolvent with the Prothonotary Senior Master, in Summary Suit No. 729 of 1982 (Smt. Durga Mohan v. M/s. International Metal Industries ors.)1, and which amount the said Durga Mohan Joshi the judgment creditor withdrew through her former Advocates M/s. Nalin Shah Co., on the 17th of December, 1983. The application is opposed by the said Durga Mohan Joshi, the petitioning creditor. 2. The facts that lead to this report are that the petitioning creditor filed a suit in this Court, being Suit No. 729 of 1982 against the insolvent. A decree was passed on the 26th of July, 1982 against the insolvent in a sum of Rs. 4 lacs and odd. The said decree was made payable by instalments. The insolvent paid some of the instalments, aggregating to a sum of Rs. 1,61,000/-. However thereafter the insolvent committed defaults. The petitioning creditor herein applied for an attachment of the insolvent's property. An attachment was levied on the 4th of August, 1983. Under this attachment, two properties came to be attached. Thereupon, the insolvent took out a Chamber Summons being Chamber Summons No. 502 of 1983, inter alia, seeking a condonation of delay in the payment of instalments and seeking a stay of execution. On this chamber summons, a sum of Rs. 40,000/- was directed to be deposited and the execution came to be stayed. This chamber summons came up for hearing and disposal on the 9th of September, 1983. On that date, it was found that the said chamber summons was defective. The insolvent hence withdrew the said chamber summons and presented another chamber summons being Chamber Summons No. 535 of 1983. The amount of Rs. 40,000/- deposited under Chamber Summons No. 502 of 1983 was treated as the amount deposited in Chamber Summons No. 535 of 1983. Pending this chamber summons, the insolvent deposited further sums from time to time in Court. The second chamber summons i.e., Chamber Summons No. 535 of 1983 came up for hearing on the 23rd September, 1983. 40,000/- deposited under Chamber Summons No. 502 of 1983 was treated as the amount deposited in Chamber Summons No. 535 of 1983. Pending this chamber summons, the insolvent deposited further sums from time to time in Court. The second chamber summons i.e., Chamber Summons No. 535 of 1983 came up for hearing on the 23rd September, 1983. The same was, however, dismissed on that day. Being aggrieved by the said order of dismissal, the insolvent filed an appeal being Appeal No. 787 of 1983 which came up for admission on the 21st of October, 1983 when the same was dismissed. The stay, however, was continued till the 8th of November, 1983, the insolvent took out yet another chamber summons, being chamber summons No. 649 of 1983 but the same proved abortive. However, it was agreed between the judgment creditor and the insolvent that the amounts deposited by the insolvent pending the two chamber summons, aggregating to Rs. 1,35,000/- should be allowed to be withdrawn by the judgment creditors and minutes to this effect came to be filed in the said proceedings. On the basis of these minutes, the judgment creditors withdrew the said amount. It appears that alongside the said proceedings, in view of the fact that the attachment continued over 21 days, the judgment creditors filed a petition being Petition No. 85 of 1983 for adjudicating the judgment debtor an insolvent. This petition came to be made absolute on the 18th of November, 1983. Being aggrieved thereby, the insolvent filed an appeal being Appeal No. 878 of 1983. The said appeal, however, came to be dismissed. 3. It is now the Official Assingnee's case that since the judgment debtor was adjudicated insolvent on the 18th of November, 1983, the insolvency must now relate lack to the date of the act of insolvency, and in view of this, it was incumbent on the judgment creditor to pay over to him, the Official Assignee, the sum of Rs. 1,35,000/- withdrawn by the judgment creditors on or about 17th December, 1983 from the Court office. He has hence filed this report seeking the said relief. 4. In opposing the application, Mr. 1,35,000/- withdrawn by the judgment creditors on or about 17th December, 1983 from the Court office. He has hence filed this report seeking the said relief. 4. In opposing the application, Mr. Shah on behalf of the judgment creditor has argued that he does not dispute that the judgment debtor was adjudicated insolvent on the 18th of November, 1983 and/or that the insolvency must relate back to the date of the act of insolvency. Mr. Shah has, however, contended that insofar as the monies are concerned, from the catalogue of events, it was obvious that a sum of Rs. 40,000/- was paid into Court at the first instance for the stay of execution of the decree. That the chamber summons No. 502 of 1983 had to be withdrawn since it suffered from a defect, and the judgment debtor i.e., the insolvent took out another chamber summons being Chamber Summons No. 535 of 1983 for more comprehensive reliefs, inter alia, seeking a stay of execution. That the amount of Rs. 40,000/- deposited under Chamber Summons No. 502 of 1983 was taken as an amount paid under Chamber Summons No. 535 of 1983. Not only this, but the judgment debtor i.e. the insolvent made further payments. That the total amount deposited pending the two chamber summons come to Rs. 1,35,000/-. That this entire amount was paid for the stay of the execution of the decree. In other words, this amount was earmarked for the decree. That the amount having been credited towards the decree, it was not open to the Official Assignee to seek a relief asking the petitioning creditor to pay up this amount to him (i.e., the official assignee) on the basis that the judgment debtor having been adjudicated insolvent, the petitioning creditor was bound to bring back this amount in Court or hand this amount over to the official assignee. 5. In support of his contention, Mr. Shah relied upon the case in (Chowthmull Maganmull v. Calcutta Wheat and Seeds Association)2, A.I.R. 1925 Cal. 5. In support of his contention, Mr. Shah relied upon the case in (Chowthmull Maganmull v. Calcutta Wheat and Seeds Association)2, A.I.R. 1925 Cal. 416, wherein it was held that where the defendant appellant obtained an order for stay of execution of a decree passed against him depositing the decretal amount in Court pending the appeal and subsequently the appellant was adjudicated insolvent and the official assignee did not choose to proceed with the appeal which was dismissed, the money deposited in Court was payable to the decreeholder and not to the official assignee. 6. Mr. Shah urged that the official assignee can have no claim on this amount of Rs. 1,35,000/- and the Official Assignee was not entitled to call upon the petitioning creditor to pay up this amount to him, the official assignee. 7. I am unable to accept this contention. As stated earlier, it is not in dispute that the adjudication order was passed on the 18th of November, 1983. By reason of section 51 of the Presidency Towns Insolvency Act, 1909, the insolvency must relate back to the date on which the act of insolvency was committed. Admittedly, the monies in question were withdrew by the judgment creditor on the 17th of December, 1983. Hence, it would be obligatory to bring back the funds of rather hand over the same to the official assignee. The official assignee would clearly be entitled to the reliefs claimed. 7-A. As regards the case cited by Mr. Shah is concerned, it may be stated that in that case, the provisions of section 53 of the Presidency Towns Insolvency Act, 1909 were not considered at all. Section 53 speaks of restriction of rights of creditor under execution and provides as follows :- "53. (1) Where execution of a decree has issued against the property of a debtor, no person shall be entitled to the benefit of the execution against the official assignee, except in respect of assets realized in the course of the execution by sale or otherwise (before the date of the admission of the insolvency petition). (2) Nothing in this section shall affect the right of a secured creditor in respect of property against which a decree is executed. (2) Nothing in this section shall affect the right of a secured creditor in respect of property against which a decree is executed. (3) A person who in good faith purchases the property of a debtor under a sale in execution shall in all cases acquire a good title to it against the official assignee." These provisions hence make it clear that the benefit of an execution cannot be retained by the judgment creditor save and except as contemplated in the said sections. It is not the judgment creditor's case that he falls within the exception. In view of this also, the monies must come back to the official assignee. 8. In the result, the official assignee would well be entitled to the relief claimed in terms of prayer (a) of the report. The petitioning creditor Smt. Durga Mohan Joshi will pay to the official assignee a sum of Rs. 1,35,000/- within eight weeks from today. Order accordingly.