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Official Receiver, Malabar Vs. Velayudhan Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 824 of 1957
Judge
Reported inAIR1963Ker52
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 2
AppellantOfficial Receiver, Malabar
RespondentVelayudhan Pillai and anr.
Appellant Advocate T.S. Venkateswara, Adv.
Respondent Advocate V. Balakrishna Eradi, Adv.
DispositionAppeal dismissed
Cases Referred and Nargyanaru v. Kumaran Nadar
Excerpt:
- - 467 or 1948 has to be taken as satisfied and discharged, it then goes without saying that the executing court became functus officio, and the attachment had only to be raised and sureties released of their obligations......the lorry to him. that, however, came to be rejected by the court on 23-10-1953. on 17-11-1953 the decree-holder in o. s. no. 467 of 1948 certified that he had been paid the decree amount by one of the sureties of the judgment-debtor and therefore satisfaction might be entered on the decree. that was, however, opposed by the official receiver and thereupon dismissed by the court.on 21-2-1955 the official receiver made a second motion for delivery of the lorry; that was allowed and the sureties were called to produce it before 12-8-1955. they took more than one adjournment but did not produce the lorry in court; and therefore the court directed the official receiver to take, the necessary steps to get the lorry. on 7-3-1956 the official receiver applied for enforcement of the sureties'.....
Judgment:

M. Madhavan Nair, J.

1. This appeal is by an Official Receiver.

2. O. S. No. 467 of 1948 on the file of the City Civil Court of Madras was a suit for money. The decree therein was transferred to the Munsif's Court, Palghat, for execution. The latter Court attached a lorry belonging to the judgment-debtor and entrusted the same with sureties on 8-10-1949 who executed a bond for its production whenever called upon and in default to deposit in Court Rs. 5,000/- as the value of the lorry. The judgment-debtor having been adjudicated insolvent in I. A. 18 of 1949 in the Sub-Court, Palghat, the Official Receiver made an application to the executing court under Section 52 of the Provincial Insolvency Act, for delivery of the lorry to him. That, however, came to be rejected by the Court on 23-10-1953. On 17-11-1953 the decree-holder in O. S. No. 467 of 1948 certified that he had been paid the decree amount by one of the sureties of the judgment-debtor and therefore satisfaction might be entered on the decree. That was, however, opposed by the Official Receiver and thereupon dismissed by the Court.

On 21-2-1955 the Official Receiver made a second motion for delivery of the lorry; that was allowed and the sureties were called to produce it before 12-8-1955. They took more than one adjournment but did not produce the lorry in court; and therefore the court directed the Official Receiver to take, the necessary steps to get the lorry. On 7-3-1956 the Official Receiver applied for enforcement of the sureties' bond by personal execution against them. That was allowed by the executing court; but on appeal by the sureties, the District Judge reversed it holding that the second application of the Official Receiver was barred by the principle of constructive res judicata on account of the dismissal of the earlier application for the same relief. This second appeal is against the latter judgment of the District Judge,

3. Order 21, Rule 2 C. P. C. provides: 'Where any money payable under a decree of any kind is paid out of court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree', and the court shall record the same accordingly.'

The decree-holder in O. S. No. 467 of 1948 having certified on 17-11-1953 that he had been paid the decree amount by one of the sureties of the judgment-debtor, the court was bound to record that petition accordingly, it had no power to inquire whether the satisfaction intimated by the decree-holder was bona fide or not. It was not for the executing court to reject the record of satisfaction made by the decree-holder and to keep the decree open for further execution by the decree-holder or someone, claiming under him. See Kadir Meera Saheb v. Pir Md. Taraganar, AIR 1933 Mad 523, Manorath v. Atmaram Sao, AIR 1934. Nag 143, Mt. Champi Bai v. Pearey Lal, AIR 1938 All 116 and Nargyanaru v. Kumaran Nadar, AIR 1954 Trav-Co. 124.

In the circumstances the decree in O. S. 467 or 1948 has to be taken as satisfied and discharged, it then goes without saying that the executing court became functus officio, and the attachment had only to be raised and sureties released of their obligations. The Official Receiver had no locus standi to oppose the record of satisfaction made by the decree-holder in the case. Counsel for the Official Receiver stated that if attachment was raised the sureties would not be bound to produce the lorry in court; and therefore the Official Receiver would not be able to get the lorry through court. That may be correct; but It is not for the Official Receiver to insist on the executing court seizing for his benefit the assets of the insolvent debtor. If the attachment that was placed in execution of a decree ceased, the lorry became the absolute property of the debtor; and by virtue of the vesting order made in the insolvency proceedings the Official Receiver could seize it himself.

In opposing the certificate of satisfaction made by the decree-holder, the Official Receiver, misunderstood his rights and duties. It is regrettable to note that his mistake has led to a delay of over 8 years in seizing the lorry and realising its proceeds for the benefit of the creditors of the insolvent. The repulsion by the District Judge of the Official Receiver's move to compel the executing court to act in his aid was justified. The second appeal has no merits and is dismissed, but in the circumstances without costs.


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