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The Firm of Ramakrishna Aiyar Represented by Its Two Partners S. Rama Aiyar and anr. Vs. the Official Receiver of Tinnevelly - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1917)32MLJ520
AppellantThe Firm of Ramakrishna Aiyar Represented by Its Two Partners S. Rama Aiyar and anr.
RespondentThe Official Receiver of Tinnevelly
Cases ReferredOfficial Receiver of Trichinopoly v. Somasundaram Chettiar
Excerpt:
.....by or against the official assignee of madras or the advocate general, or of the administrator-general where there has been a change of officers pending the litigation and i shall not express any opinion as regards the legality of the practice alleged by..........4th february 1916 in a.a.o. no. 407 of 1914.2. that appeal was preferred by one mr. gopaliah (then official receiver of tinnevelly) against the order passed by the district judge of tinnevelly refusing the receiver's application made under section 37 of the provincial insolvency act iii of 1907 to annul certain alienations made by an adjudicated insolvent in favour of one of his creditors, (namely, the firm represented by the respondents 1 and 2) within three months before the adjudication).3. pending a.a.o. no. 407 of 1914 in this court, mr. gopalaiah, the official receiver resigned his post and a new receiver was appointed by the local government for the tinnevelly division. the appeal came on for hearing before myself and moore, j. on the 4th february 1916. mr. deva doss had filed the.....
Judgment:

Sadasiva Aiyar, J.

1. This is a petition for review of the judgment pronounced by myself and Moore, J. on the 4th February 1916 in A.A.O. No. 407 of 1914.

2. That appeal was preferred by one Mr. Gopaliah (then Official Receiver of Tinnevelly) against the order passed by the District Judge of Tinnevelly refusing the receiver's application made under Section 37 of the Provincial Insolvency Act III of 1907 to annul certain alienations made by an adjudicated insolvent in favour of one of his creditors, (namely, the firm represented by the respondents 1 and 2) within three months before the adjudication).

3. Pending A.A.O. No. 407 of 1914 in this Court, Mr. Gopalaiah, the Official Receiver resigned his post and a new Receiver was appointed by the Local Government for the Tinnevelly Division. The appeal came on for hearing before myself and Moore, J. on the 4th February 1916. Mr. Deva Doss had filed the appeal for Mr. Gopalaiah, the then Official Receiver. I accept Mr. Deva Doss's statement that on 4-2-1916 he represented to us that Mr. Gopalaiah had resigned his post of Official Receiver and that another gentleman (Mr. S. Subramania Aiyar) had been appointed as Official Receiver, that a doubt was suggested before us by the learned Counsel whether it was necessary to have the name of the new Official Receiver substituted for that of Mr. Gopalaiah in the appeal records before the appeal could be heard and that we intimated that all that was necessary was that instead of the appellant being described as Mr. P.A. Gopalaiah, Official Receiver of Tinnevelly thereafter, he might be described simply as the Official Receiver of Tinnevelly.

4. I also accept Mr. Deva Doss's statement that he represented to us that he had instructions to continue the appeal, oh behalf of the then Official Receiver.

5. After hearing both sides fully we allowed the appeal and declared the alienations made by the insolvent to the firm of the respondents 1 and 2 void as against the Official Receiver.

6. In drawing up the fair copies of our Judgment and order, the office had repeated the name of Gopalaiah before the description of the appellant as the Official Receiver of Tinnevelly. That is a clerical error which must be corrected.

7. This petition of review is filed by the firm of S.R.M.V.S.S.V. Ramakrishna Aiyar who are the respondents 1 and 2 in the appeal. The Official Receiver of Tinnevelly is the Respondent in this review petition which does not mention the Official's, individual name. The only arguable ground on which this review petition is sought to be supported is the first ground which is as follows:-'The decision of the learned Judges is vitiated in law in that the appellant had resigned and so had no locus standi to appear and the new Receiver was not brought on record before the case was heard.'

8. It is argued in support of this ground that the decision in Akula Paradesi v. Dhelli Jagannadha Row I.L.R. (1904) M 157 constrains me to hold that the appeal was heard in the absence of the proper party as appellant and that the devolution of interest to the next Receiver was of such a kind that the old Receiver could not continue to represent the interests involved in the appeal even for the purpose of the further conduct of the appeal. The Calcutta Case reported in Rai Charan Mandal v. Biswanath Mandal (1915) 26 I.C. 410 considers devolutions of interest through transfers of the interests of private parties. So far as such litigation is concerned the original parties can continue the litigation effectively.

9. The decision in Akula Paradesi v. Delli Jagannadha Row I.L.R. (1904) M 157 however draws a distinction between the continuation of litigation by a private person whose interest has ceased through assignment or devolution and the continuation of litigation by one whose right to conduct the litigation was based solely on his character of a Receiver or Trustee appointed by the Court and whose character as such ceased during the pendency of the litigation. The learned Judges say that in the latter case 'the law necessarily implies the absence of all interest in the subject of litigation' when the official capacity of the party litigant whose name is on the record terminates and that his continuance of the litigation after such termination would be futile save in very exceptional cases as 'where the right of action accrued by virtue of mere possession or by virtue of their being contracting parties themselves' and so on.

10. Mr. Deva Doss argued contra that the case of Akula Paradesi v. Dhelli Jagannadha Row I.L.R. (1904) M. 157 related to a Receiver appointed under Section 503 of the old Civil Procedure Code for a particular suit or particular suits and that the ratio of that decision could not apply to an Official Receiver in whom ex officio all the properties of the insolvent become vested and who by reason of the office becomes entitled to institute and continue suits. Mr. Deva Doss relied upon the analogy of the Official Assignee on the Original Side of the High Court, of the Advocate General, the Administrator General and so on who bring and defend suits in their Official designations and whose successors are entitled to continue the conduct of the litigation (according to what Mr. Deva Doss alleged was the uniform practice) without their successor's names being brought on the record.

11. I am not well acquainted with the practice as regards suits brought by or against the Official Assignee of Madras Or the Advocate General, or of the Administrator-General where there has been a change of officers pending the litigation and I shall not express any opinion as regards the legality of the practice alleged by Mr. Deva Doss assuming it to exist. It seems, however, that a distinction might be fairly drawn between the position of the Official Assignee in Madras and the position of an Official Receiver in the Mofussil.

12. Whereas under Section 17 of the Presidency Towns Insolvency Act III of 1909 the effect of the order of adjudication is at once to vest in the Official Assignee all the properties of the insolvent, under the Provincial Insolvency Act of 1907 (Section 19 Clause 2 read with Sections 16 and 18) the properties of an adjudicated insolvent vest in the Official Receiver in the Mofussil only when the Court appoints a Receiver for the property of the Insolvent under Section 18 Clause 1. Official Receiver of Trichinopoly v. Somasundaram Chettiar : (1916)30MLJ415 Section 18 Clause 1 is as follows 'The court may, at the time of the order of adjudication or at any time afterwards appoint a receiver for the property of the insolvent, and such property shall thereupon vest in such receiver.') It is also to be noted that under Section 83 of the Presidency Towns Insolvency Act, the official Assignee may sue and be sued by the name of 'the Official Assignee of the property of the insolvent' without mentioning his own name.

13. Under Section 61 again, of the Presidency Towns Insolvency Act, the property of the insolvent shall pass from the Official Assignee for the time being during the continuance in office, without any transfer whatever.' There seem to be no provisions in the Provincial Insolvency Act (at least none was pointed out to me). It is, however, open to argument that Section 61 of the Presidency Towns Insolvency Act was enacted merely through abundant caution and that the provision which makes the property of the insolvent vest in the Official Receiver implies that on the change of the personnel of the Official Receiver the property vests ipso facto in the new Official Receiver. I think it is unnecessary for me to pursue the matter further as I think that this review petition might be disposed of on another ground which I shall at once proceed to state.

14. At the hearing of the appeal before myself and Moore, J. it is admitted (see ground No. 2 of the review petition itself) that the resignation of the Receiver Mr. Gopalaiah was brought to our notice and also the fact that a new Receiver had been appointed, Supposing an amendment of the records became, in consequence, necessary, I think it must be taken that myself and Moore, J. treated the record as amended by striking out the name of Mr. Gopalaiah from the record and retaining only the words 'Official Receiver, Tinnevelly ' and that we held further that such a description represented the new Receiver sufficiently. The respondents 1 and 2 in the appeal (who are the petitioners in review) did not object to the hearing of the appeal on the footing, the appellant on the record was the new Receiver who was continuing the conduct of the appeal filed by the old Receiver and did not object that the new Receiver's name should be formally and expressly entered on the record or that his description as Official Receiver was not legally sufficient. I think that under these circumstances it must be taken that our decision was given in favour of the new Official Receiver and must be held to accrue for the benefit of the Official Receiver for the time being. I therefore dismiss this petition for review with costs.


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