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Maturi Lakshmikantamma Vs. Motilal Kesarimal Firm and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1944Mad49; (1943)2MLJ492
AppellantMaturi Lakshmikantamma
RespondentMotilal Kesarimal Firm and anr.
Cases Referred and Veerayya v. Srinivasa Rao
Excerpt:
- ...... and veerayya v. srinivasa rao : (1935)69mlj364 , that upon the annulling of adjudication, the insolvency proceedings cease, except in so far as the insolvency court may order or section 43 of the act which says that ' all acts theretofore done, by the court or receiver, shall be valid,' may permit.3. if we were dealing merely with an application under sections 53 and 54, the position of the respondent might be a little difficult. it is true that the court accorded sanction to the creditor to institute proceedings under sections 53 and 54; but the actual initiation of proceedings was not the act of the court. it was the act of the creditor, for which he had obtained the sanction of the court. it has been held that the institution of proceedings under section 53 or any other section.....
Judgment:

Horwill, J.

1. The petitioner's husband made a number of alienations just before he was adjudicated insolvent; and with regard to some of them, the Official Receiver instituted proceedings under Sections 4, 5, 53 and 54-A of the Provincial Insolvency Act to have them set aside. With regard to the one with which we are concerned, however, he took no action. One of the creditors then applied to the Insolvency Court under Section 54-A of the Insolvency Act for permission to institute proceedings under Sections 4, 53, and 54; and the Court accorded that sanction. The application was heard; and the Court found that it was a genuine transaction fully supported by consideration and not made in fraud of creditors. An appeal filed by the aggrieved creditor was allowed. During the pendency of the appeal, however, the Insolvency Court annulled the adjudication, though it does not appear that the appellate Court was aware of this. The question is whether on account of the annulling of the adjudication, the appellate Court ceased to have jurisdiction to hear the appeal. If so, the order of the District Judge is void.

2. It has now been conclusively decided by Bhadramma v. Parvateesam Ayyavaru (1939) 63 M.L.J. 414 Jethaji Peraji Firm v. Krishnayya : (1929)57MLJ116 . and Veerayya v. Srinivasa Rao : (1935)69MLJ364 , that upon the annulling of adjudication, the insolvency proceedings cease, except in so far as the Insolvency Court may order or Section 43 of the Act which says that ' all acts theretofore done, by the Court or receiver, shall be valid,' may permit.

3. If we were dealing merely with an application under Sections 53 and 54, the position of the respondent might be a little difficult. It is true that the Court accorded sanction to the creditor to institute proceedings under Sections 53 and 54; but the actual initiation of proceedings was not the act of the Court. It was the act of the creditor, for which he had obtained the sanction of the Court. It has been held that the institution of proceedings under Section 53 or any other section of the Act by the Receiver are acts of the Receiver and that therefore, the proceedings could be continued and disposed of by the Court. The application was, however, also one under Section 4; and the Court has found in appeal that the transaction was a sham and nominal one. Under Section 4,

the Court shall have full power to decide all questions of any nature whatsoever which may arise in any case of insolvency coming within the cognizance of the Court.

4. So that an inquiry under Section 4 may be considered to be an act of the Court, which under Section 43 may be continued. Moreover, as the Insolvency Court ordered that the property of the insolvent should continue to vest in the Official

5. Receiver, it seems to me that the Insolvency Court has necessarily power to determine what property belongs to the insolvent and what does not. If the transfer were merely voidable, then the property would continue to belong to the alienee until the alienation were set aside by the Court under Section 53 or 54; but if the transaction was not a true one, then the property continued to belong to the insolvent, even though it might stand in the name of the alienee.

6. The question is complicated somewhat by the fact that the insolvency was annulled during the pendency of the appeal and not during the pendency of proceedings in the Insolvency Court; and I think Mr. Kameswara Rao is right in saying that the appellate Court is not the Insolvency Court. It however seems to me a truism that the appellate Court has all the powers of the trial Court, unless the statute makes it appear otherwise. So that if the trial Court would have had power to continue the proceedings it seems to me that the appellate Court had that power also.

7. Finally, it is pointed out by the learned advocate fow the respondent that this point was not taken in the lower appellate Court, which in itself might be a sufficient reason for dismissing this revision petition.

8. For the above reasons, this petition is dismissed with costs.


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