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Meesala Seethayya Vs. Kallidi Venkanna and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 10 of 1949
Judge
Reported inAIR1951Mad1010; (1951)2MLJ299
ActsLimitation Act, 1908 - Articles 138 and 182; Provincial Insolvency Act, 1920 - Sections 28 and 28A; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantMeesala Seethayya
RespondentKallidi Venkanna and anr.
Appellant AdvocateB.V. Subramanyam, Adv.
Respondent AdvocateV. Subramanyam, Adv.
DispositionRevision allowed
Excerpt:
- - this, in my opinion, proceeds on the fallacy, and the fallacy is in assuming that immediately after the insolvency of the father the execution creditor is disabled from executing the decree against the son's share in cases where a decree was obtained not only against the father but also against the son as well......of the suit, defendants 1, 2 and 3 were adjudicated insolvents on 2nd october 1935, and the official receiver was impleaded in the suit as the sixth defendant in i. a. no. 70 of 1936 dated 24th february 1936. the decree actually passed was that defendants 1 to 3 from out of the properties in the hands of the official receiver, i.e., the sixth defendant, and defendants 4 and 5 from out of their joint family property should pay the plaintiff the sum of rs. 470 with interest. during the pendency of the insolvency, the third defendant's share in the family properties was sold by the official receiver, and was purchased by a stranger. the purchase apparently was of an undivided share in the property. in pursuance of the sale after obtaining the sale deed, the purchaser seems to have.....
Judgment:
ORDER

Satyanarayana Rao, J.

1. This revision petition is against the order in E. P. No. 112 of 1948 in S. C. No. 38 of 1935 passed by the learned Subordinate Judge, Amalapuram. In Section C. No. 38 of 1935 the first respondent who is the decree-holder obtained a decree against five persons on the foot of a promissory note dated 10th October 1933 executed by defendants 1 to 3 in the suit. The fifth defendant is the son of the third defendant. During the pendency of the suit, defendants 1, 2 and 3 were adjudicated insolvents on 2nd October 1935, and the Official Receiver was impleaded in the suit as the sixth defendant in I. A. No. 70 of 1936 dated 24th February 1936. The decree actually passed was that defendants 1 to 3 from out of the properties in the hands of the Official Receiver, i.e., the sixth defendant, and defendants 4 and 5 from out of their joint family property should pay the plaintiff the sum of Rs. 470 with interest. During the pendency of the insolvency, the third defendant's share in the family properties was sold by the Official Receiver, and was purchased by a stranger. The purchase apparently was of an undivided share in the property. In pursuance of the sale after obtaining the sale deed, the purchaser seems to have got the property partitioned into two shares and obtained delivery of the father's share, i.e., the share of the third defendant. The adjudication was however annulled on the 21st December 1943, and it is not known whether the insolvent obtained a discharge before the annulment of the adjudication. After the annulment, on the 2nd August 1945 an execution petition against all the defendants was filed, which was finally rejected on 10th December 1945 on the ground that certain information which the office required the decree-holder to give was not furnished. This was followed by another application, which is unnumbered and is dated 5th January 1948. That application also was against all the defendants, and it was dismissed on 6th February 1948.

2. After all this, the present E. P. No. 112 of 1948 was filed on the 8th April 1948 for attachment of immoveable property belongingto defendants 3 and 5. This application was resisted by the fifth defendant, the petitioner, on the ground that the application as against Mm was barred by limitation. The learned Judge held that the application was not barred by limitation and directed execution to proceed. His view was based entirely upon Section 28A of the Provincial Insolvency Act which was introduced for the first time in April 1948. The present application is within less than 12 years from the date of the original decree. The previous application filed in 1945 and 1948, if they were in time as against the fifth defendant, would certainly save limitation so far as the present application is concerned. The question therefore is whether the application filed in 1945 nearly nine years after the date of the decree is in time against the fifth defendant, the son of the third defendant. The insolvency of the father no doubt under the law, as it now stands, which has retrospective effect vested not only the share of the father but also the power of the father to dispose of the properties of the sons, in the Official Receiver, but actually the Official Receiver sold only the father's interest in the property, i.e., the undivided half share and did not exercise the power of the father by bringing to sale the share of the son also. Section 28 of the Provincial Insolvency Act did not prevent the decree-holder from proceeding in execution of the decree against the son's share notwithstanding the vesting of the power to dispose of the property, in the Official Receiver. That vesting does not take away the power of the son to sell the property in his own right, and much less prevent the execution creditor from proceeding with the sale of the son's share. There is no bar therefore under the law preventing the decree-holder from executing the decree against the son.

3. The learned Subordinate Judge seems to think that the new Act by recognising retrospectively the power of the Official Receiver in the case of insolvency of the father to dispose of the son's share in the right of the father, saves the bar of limitation against the son. This, in my opinion, proceeds on the fallacy, and the fallacy is in assuming that immediately after the insolvency of the father the execution creditor is disabled from executing the decree against the son's share in cases where a decree was obtained not only against the father but also against the son as well. There was no bar before the amendment, and much less is there a bar after the amendment. So long as the decree was executable against the son's share, notwithstanding the insolvency of the father the execution application filed in 1945 against the son must be treated as barred by limitation, as it was filed more than nine years from the date of the decree. The view therefore of the learned Judge that the application was not barred by limitation by virtue of the new Section 28A of the Insolvency Act is not correct.

4. It is next sought to be argued on behalf of the respondent-decree-holder that the decree was a joint and several decree, and that the application against the father would prevent ;he running of time against the sons. This would undoubtedly be so, if the decree had been a joint and several decree, but, as already stated, the decree was against defendants 1 to 3 to discharge the debt out of the property in the hands of the Official Receiver on the one hand and against defendants 4 and 5 to discharge the debt out of the joint family property. A decree of that description cannot be treated as a joint and several decree against defendants 1 to 5. The contention therefore cannot be accepted. No doubt it would have been open to the decree-holder to proceed in execution and compel the father to exercise the power of disposition over the son's share, provided that power had not been terminated by the disruption of the status of the joint family. This contention was not raised in the Court below, and for aught I know, it looks to me that when the purchaser from the Official Receiver obtained a partition of the properties of the father, that must have terminated the joint status of the family. If the decree-holder intended to raise a question of that description which necessitated investigation of further facts, it was up to him to have raised it in the lower Court, and as he did not raise it, it is unnecessary to consider it or remand the application for further enquiry. The view taken by the lower Court is wrong.

5. The civil revision petition is allowed,and the execution application filed against thefifth defendant is dismissed with costs hereand in the Court below.


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