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Gannamani Ramanna as Representing the General Body of Creditors Vs. Donga Suramma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1949)2MLJ128
AppellantGannamani Ramanna as Representing the General Body of Creditors
RespondentDonga Suramma
Cases ReferredLahori Singh v. Official Receiver Sialkot A.I.R.
Excerpt:
- - a second appeal to this court also failed. but even there, their lordships do appear to contemplate that a decision given under section 53 of the transfer of, property act might well stand on a different footing......121 of 1936 became insolvent and subsequently died. thereupon an application was made to add the official receiver as a party. in the affidavit filed in support of the application, the following recital occurs:therefore, the official receiver, west godavari, had to be included in his representative capacity as a third defendant in this suit in the place of the second defendant and the further proceedings had to be conducted. it is therefore prayed that the court may be pleased to add the official receiver, west godavari, in his representative capacity as a third defendant. this petition was allowed. but the official receiver did not contest this suit.2. the additional district munsif, tanuku, who tried this suit, found the transaction to be true and fully supported by consideration......
Judgment:

1. The relevant facts are these. In O.S. No. 121 of 1936, on the file of the District Munsif, Tanuku, the plaintiff, a creditor, obtained attachment before judgment of certain properties alleged to belong to the defendant. One Donga Suramma then intervened with a petition claiming that the properties belonged to her and asked for cancellation of the order of attachment. Her request was refused. Thereupon, she filed a regular suit, O.S. No. 389 of 1937, to establish her title to the properties and to this suit, both the attaching creditor and the defendant were made parties. The defendant in O.S. No. 121 of 1936 became insolvent and subsequently died. Thereupon an application was made to add the Official Receiver as a party. In the affidavit filed in support of the application, the following recital occurs:

Therefore, the Official Receiver, West Godavari, had to be included in his representative capacity as a third defendant in this suit in the place of the second defendant and the further proceedings had to be conducted. It is therefore prayed that the Court may be pleased to add the Official Receiver, West Godavari, in his representative capacity as a third defendant.

This petition was allowed. But the Official Receiver did not contest this suit.

2. The Additional District Munsif, Tanuku, who tried this suit, found the transaction to be true and fully supported by consideration. The learned District Munsif also negatived the contention of the creditor that the sale deed in favour of Donga Suramma had been entered into for the purpose of defeating the creditors of the insolvent. An appeal was filed; but it was dismissed. A second appeal to this Court also failed. Thereafter, the Official Receiver, who had been till then inactive, bestirred himself. He filed an application under Sections 4 and 53 of the Provincial. Insolvency Act for a declaration that the sale deed in favour of Donga Suramma was executed without consideration and for defeating the claims of the creditors of the insolvent. The objection was then put forward that it was not open to the Official Receiver to agitate the question over again. This objection was upheld and the District Munsif dismissed the petition. There was an appeal from that order to the District Judge, West Godavari, who dismissed it.

3. The present civil revision petition has been filed to revise this order. The principal contention urged before me is that questions arising under the Insolvency Act can be decided only by courts exercising powers under that Act and that the ordinary civil courts have no jurisdiction to do so. Therefore, the decisions rendered in O.S. No. 389 of 1937 and the appeals therefrom, would not operate as res judicata. In support of this contention reference was made to the decision in Official Assignee, Bombay v. Sundarachari : AIR1927Mad684 . This decision does no doubt seem at first sight to support the contention raised. But even there, their Lordships do appear to contemplate that a decision given under Section 53 of the Transfer of, Property Act might well stand on a different footing. Besides, there is one material difference here. Rightly or wrongly, the Official Receiver was added in his representative capacity and this includes the one under which he is now acting. After having remained ex parte and allowed the litigation to be fought out as though he had no interest in it he cannot now ask for a fresh trial on the same facts. The question on which a new decision is now sought for arises out of the facts and contentions which have already been completely adjudicated upon in proceeding to which he Was a party. I do not therefore think that this petition should be allowed. I am strengthened in' this view by the decision in Lahori Singh v. Official Receiver Sialkot A.I.R. 1937 Lah. 4. The facts there were substantially similar to the facts here. It was held there,

Where therefore the question of title to certain property belonging to an insolvent was directly and substantially in issue in a previous suit between the parties in which the Official Receiver was also impleaded, and had been heard and finally decided by a Court of competent jurisdiction, it is not open to either party to re-agitate the question of title again before the insolvency Court.

The civil revision petition fails and is dismissed with costs.


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