1. The appellant is the Official Receiver of Kistna, and as such the Receiver in the insolvency of the 2nd and 3rd respondents to this appeal. The 1st respondent, the Imperial Bank of India, obtained a money decree against the two other respondents and against the 4th respondent, a son of the 3rd respondent, in respect of his share in the joint family property. This decree was obtained in March, 1931.
2. The 2nd and 3rd respondents were respectively adjudicated insolvents on 12th September, 1931 and 11th January, 1932.
3. The Bank had attached the property of the two insolvent's and the share of the 4th respondent before judgment. This statement could not, of course, operate to prevent the vesting of the insolvents' property in the Official Receiver on their later insolvency Raghunath Das v. Sundar Das Khetri (1914) L.R. 41 I.L.R. 42 Cal. 72 : 27 M.L.J. 150 .
4. The Bank subsequently took steps to bring the 4th respondent's share in the Property to sale. Objection was made by the Official Receiver in a petition, dated 19th April, 1932. In this petition he alleged that on 4th March, 1932, he had come to know from information given by some of the creditors that the property which the Bank was going to sell was the self-acquired property of the 2nd and 3rd respondents arid another man, and, consequently, property in which the 4th respondent had no right or share. The petition prayed that the property should be released from the attachment and1 that the Bank's sale should be stayed, or, in the alternative that the sale proceeds should be deposited in Court pending the determination of the question of who was entitled to them.
5. The Court dismissed the petition. The Judge seems to have thought that there had been some undue delay in bringing the petition. But the ground of his decision was that no reason had been shown why the Bank should suffer further expense by having the sale postponed. It is from this order that the Official Receiver has appealed.
6. Mr. Nambiar on behalf of the Bank has taken the point that the Official Receiver's petition is not maintainable as an application under Section 47, Civil Procedure Code in as much as the Official Receiver is not a 'representative' within that section. He contends that the only footing on which the petition can stand is as a claim or objection under Order 21, Rule 58 and an order made under this last mentioned rule is undoubtedly not appealable.
7. The Receiver or assignee in insolvency may be for some purposes the representative of the insolvent. In Raghunath Das v. Sundar Das Khetri their Lordships of the JudiciaJ Committee held that the failure of the judgment creditors to serve a notice under Section 248 of the 1882 Code (now represented by Order 21, Rule 22 of the 1908 Code) on the Official Assignee as the legal representative of the insolvent judgment-debtor rendered the sale in execution of the decree inoperative. That was a decision that the Official Assignee was the legal representative of the insolvent for the purpose of proceedings in execution under Section 248. There was, however, no definition of 'legal representative' in the 1882 Code. Now, by Section 2, Clause (ii) of the 1908 Code, a 'legal representative' is defined as meaning a person who in law represents the estate of a deceased person. By virtue of the new definition, therefore, the Official Assignee or Receiver of an insolvent would not be his legal representative for the purpose of Order 21, Rule 22, though a Rule of this High Court requires that a notice under Order 21, Rule 22 shall be given to the Official Assignee or Receiver.
8. The principle to be derived from the cases See Kasi Prasad v. Miller I.L.R.(1885) 7 All. 752, C.E. Grey, Official Assignee v. Hazari Lal I.L.R. (1908) 30 All. 486, Sardarmal v. Aranvayal Sabhapathy I.L.R.(1896) 21 Bom. 205, The Official Assignee at Madras v. Aiju Dikshithar : (1925)48MLJ530 and Mohitosh Dutta v. Rai Satish Chowdra Chowdhuri Bahadur 35 C.W.N. 971, appears to be that the question whether an Official Assignee or Receiver is a 'representative' depends on the true character of his proceedings. If his application is to stay an execution sale of property or to release property from an attachment on the ground that the property in question is property of the insolvent which has become vested in him, the authorities above cited show that he is not to be regarded as acting in a representative capacity. Section 47 has then no application, because the Official Receiver is exercising his right as Receiver to recover property which is vested in him and is not pursuing a claim as a representative of a party to the suit in which the decree was made.
9. In the present case the Official Receiver's petition is headed as brought under Section 47 and Order 21, Rule 58 of the Civil Procedure Code and Sections 4, 5 and 52 of the Provincial Insolvency Act. But it is necessary to look at the substance of the petition. It is clear from paragraph 4 of the petition that in reality he is making a claim or objection under Order 21, Rule 58. In these circumstances, we must hold that the order made on the petition is not appealable and that this appeal must be dismissed with costs.