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A. Swaminatha Odayar Vs. Kalyanarama Aiyangar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad694; 145Ind.Cas.855; (1933)65MLJ359
AppellantA. Swaminatha Odayar
RespondentKalyanarama Aiyangar and anr.
Cases ReferredBrij Kishore Lal v. Pratap Narain
Excerpt:
.....was adjudged an insolvent, i fail to understand why the decree-holder did not bring in the official receiver as a party to the execution proceedings. chinnaswami air1926mad959 in which the learned judge distinctly held that even a presumptive reversioner entitled to the property after the death of a hindu female can maintain an application under order 21, rule 90, civil procedure code, for setting aside the sale, though it may be said that the interest of such a person is only contingent and not vested. it is not restricted to persons having an interest in praesenti, and if a presumptive reversioner who has only the chance of succeeding to the estate in the event of his surviving the widow can have locus standi under this rule to put in an application, i fail to see why the..........because he was adjudged an insolvent and his estate must be deemed to have vested in the official receiver. if before the auction sale in question, the petitioner was adjudged an insolvent, i fail to understand why the decree-holder did not bring in the official receiver as a party to the execution proceedings. it is obvious that any sale held in execution of that decree subsequent to the adjudication of the judgment-debtor would not bind the official receiver, unless he was impleaded in the execution proceedings prior to the auction sale. on this simple ground, it would be open to the official receiver to have this auction sale set aside. but that is not the question with which we are concerned in this revision petition.2. according to order 21, rule 90, civil procedure code,.....
Judgment:

Sundaram Chetty, J.

1. In this case, the only question for determination is whether the petitioner had locus standi to put in an application tinder Order 21, Rule 90, Civil Procedure Code, for setting aside a sale in execution of a decree against him. Both the Courts below have held that the petitioner could not maintain this application, because he was adjudged an insolvent and his estate must be deemed to have vested in the Official Receiver. If before the auction sale in question, the petitioner was adjudged an insolvent, I fail to understand why the decree-holder did not bring in the Official Receiver as a party to the execution proceedings. It is obvious that any sale held in execution of that decree subsequent to the adjudication of the judgment-debtor would not bind the Official Receiver, unless he was impleaded in the execution proceedings prior to the auction sale. On this simple ground, it would be open to the Official Receiver to have this auction sale set aside. But that is not the question with which we are concerned in this revision petition.

2. According to Order 21, Rule 90, Civil Procedure Code, any person whose interests are affected by the sale may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. The point for consideration is, whether a judgment-debtor who is adjudged an insolvent and whose property is vested in the Official Receiver can be deemed to be a person whose interests are affected by the sale, within the meaning of the aforesaid rule. Under Rule 72 of Order 21, Civil Procedure Code, the judgment-debtor or any other person whose interests are affected by the sale may apply to have the sale set aside. In construing this expression, the learned judges in the case reported in Kondapalli Tatireddi v. Ramachandra Rao (1921) 13 L.W. 616 have held that the insolvency of a judgment-debtor does not render it incompetent for him to continue the proceedings connected with an application under that rule by way of appeal. Having regard to the similarity of the wording employed in Rules 72 and 90, I should think that the same view must be applied to the present case also. It may be that by reason of the adjudication the insolvent would not be entitled to any present interest in the estate, which of course vests in the Official Receiver. That does not mean that by the sale of his property in Court auction his interests could in no way be affected within the meaning of Rule 90. Suppose a composition scheme is put in and approved by the Court and the result is the annulment of the adjudication. The properties would at once go back to the insolvent and if the Court auction sale should be left unchallenged by anybody there is every likelihood of the interests of the insolvent being affected. In the Full Bench case reported in Hari Rao v. Official Assignee, Madras : (1926)50MLJ358 the main question for consideration was whether an insolvent would be a person 'aggrieved' for the purpose of preferring an appeal against an order in insolvency. Their Lordships had not to consider the language of Order 21, Rule 90 in that case. On the other hand, there is a decision of Ramesam, J., in Adanamoli Chetti v. Chinnaswami : AIR1926Mad959 in which the learned Judge distinctly held that even a presumptive reversioner entitled to the property after the death of a Hindu female can maintain an application under Order 21, Rule 90, Civil Procedure Code, for setting aside the sale, though it may be said that the interest of such a person is only contingent and not vested. The decision in Brij Kishore Lal v. Pratap Narain (1919) 4 pat. L.J. 360 has been followed. The expression used in Rule 90, namely, 'whose interests are affected by the sale' is certainly a wide and comprehensive one. It is not restricted to persons having an interest in praesenti, and if a presumptive reversioner who has only the chance of succeeding to the estate in the event of his surviving the widow can have locus standi under this rule to put in an application, I fail to see why the judgment-debtor in the present case in spite of his having been adjudicated an insolvent, cannot apply under the aforesaid rule. The interest of a presumptive reversioner is as much contingent as that of the insolvent if not more. I may also observe that in the present case when the Official Receiver has not been made actually a party to the execution proceedings, there is all the more reason for the judgment-debtor himself to apply under this rule.

3. I hold that the petitioner has locus standi to maintain this application. In setting aside the orders of the Court below, the application is remanded to the Court of first instance for disposal on the merits. The petitioner's costs in this petition should be paid by the respondents. The other costs will abide the final result of the petition.


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