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Guntapalli Narasimhayya and ors. Vs. Malapati Vefraraghavulu and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in42Ind.Cas.525
AppellantGuntapalli Narasimhayya and ors.
RespondentMalapati Vefraraghavulu and anr.
Cases ReferredCheda Lal v. Lachman Parshad
Excerpt:
provincial insolvency act (iii of 1907), sections 20, 47 - sale by official receiver of insolvent's property--possession with third person--district judge, power of, to order delivery of possession--official receiver, position of. - .....their own right and also alleged that they had been for a long time in possession of the land. the district judge, purporting to act under section 47 of the provincial insolvency, act, has held a summary enquiry and directed that the purchaser, the 1st respondent, be put in possession of the land. we do not think that section 47 of the insolvency act authorizes the district judge to act in this manner and by a summary proceeding to order the appellants to deliver possession of the land to the 1st respondent. section 47 says: subject to the provisions of this act, the court, in regard to proceedings under this act, shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction'. what this section lays down is the.....
Judgment:

1. This appeal arises in certain insolvency proceedings in the Mofussil Court to which the Provincial Insolvency Act III of 1907 applies. A man called Venkatakrishnayya was declared insolvent and the Receiver who was appointed in Insolvency, sold some property which was alleged to belong to the insolvent and to have been mortgaged by him to the 1st respondent, and in that sale the 1st respondent bought the property. When the purchaser, the 1st respondent, wanted to take possession, he was obstructed by the appellants before us who claimed title to the property in their own right and also alleged that they had been for a long time in possession of the land. The District Judge, purporting to act under Section 47 of the Provincial Insolvency, Act, has held a summary enquiry and directed that the purchaser, the 1st respondent, be put in possession of the land. We do not think that Section 47 of the Insolvency Act authorizes the District Judge to act in this manner and by a summary proceeding to order the appellants to deliver possession of the land to the 1st respondent. Section 47 says: Subject to the provisions of this Act, the Court, in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in the exercise of Original Civil Jurisdiction'. What this section lays down is the procedure, to be followed by the Insolvency Judge with regard to proceedings held under this Act. But the proceedings must be the act of the Court and not the act of a Receiver done under Section 20 of the Insolvency Act; the powers given to the Receiver under Section 20 are exercised by him standing in the shoes of the insolvent in the interests of the creditors. He does not in any way act as a Court, and whatever he does in this connection he does merely on behalf of the insolvent,

2. The learned Counsel for the respondent has asked us to say that under Section 47 the District Judge sitting' as an Insolvency Court is empowered to try this matter as one in execution of a decree. To that the simple answer is, that there was no decree for execution. There was no decree at all in the case and it would be going much too far to say that a Judge in insolvency in the Mofussil has powers by a summary proceeding to decide questions of title with respect to property which is claimed by third persons. The two Calcutta decisions in Minatoonnma Bibee v, Khatoonnessa Bibee 10 Ind. Doc 949. and Golam Hossein Cassirn. Arif v. Fatima Begum 16 C. W. N. 394., which were cited by the District Judge in support of his view, -were not under the Insolvency Act at all. They were rulings in connection with questions arising in the execution of decrees under the Civil Procedure Code. On the other hand, there is a ruling of the Allahabad High Court reported in Cheda Lal v. Lachman Parshad 37 Ind. Cas. 830 which enunciates the same view as we have suggested.

3. The appeal is allowed and the judgment of the District Judge must be set aside and the 1st respondent's petition dismissed with costs throughout.


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