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The Official Receiver Vs. Gogeineni Kondaramayya and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in157Ind.Cas.826
AppellantThe Official Receiver
RespondentGogeineni Kondaramayya and anr.
Excerpt:
provincial insolvency act (v of 1920), sections 52, 51 - application under section 52--duty of court--executing court--whether competent to investigate or decide questions of title in dispute between insolvent judgment-debtor and any other co-judgment-debtor or stranger--section 51, scope of. - .....of the additional subordinate judge of bezwada dated april 13, 1933. there were two appeals to the subordinate judge from one and the same order passed by the district munsif of bezwada in two applications made to him under section 52 of the provincial insolvency act. two different decree-holders had attached certain properties in execution of decrees obtained by them against two persons, father and son. before the properties were actually brought to sale, the father filed an insolvency petition, and in that petition the official receiver, kistna, was appointed receiver of his properties. thereupon the official receiver presented two applications under section 52 of the provincial insolvency praying that the sale of the properties may be stopped. the district munsif after enquiry held.....
Judgment:

Pandrang Row, J.

1. These arise out of the order in appeal of the Additional Subordinate Judge of Bezwada dated April 13, 1933. There were two appeals to the Subordinate Judge from one and the same order passed by the District Munsif of Bezwada in two applications made to him under Section 52 of the Provincial Insolvency Act. Two different decree-holders had attached certain properties in execution of decrees obtained by them against two persons, father and son. Before the properties were actually brought to sale, the father filed an insolvency petition, and in that petition the Official Receiver, Kistna, was appointed Receiver of his properties. Thereupon the Official Receiver presented two applications under Section 52 of the Provincial Insolvency praying that the sale of the properties may be stopped. The District Munsif after enquiry held that the properties brought to sale were the self-acquisitions of the father Bapayya and accordingly stopped the sales and directed delivery of the entire properties to the Official Receiver. From this order the decree-holders appealed to the Subordinate Judge, and the Subordinate Judge held that it was not competent to the Executing Court to whom an application is made under Section 52 of the Provincial Insolvency Act to investigate and decide the questions of title arising between the insolvent and others, and accordingly he modified the order of the District Munsif, to the extent of allowing the Official Receiver to take possession only of the interest of the insolvent, whatever it might be, in the properties, and allowing the decree-holders to proceed with the execution of their decrees so far as the 2nd judgment-debtor's, i.e. the son's, interest in the attached properties, whatever it might be, was concerned. Preliminary objection was raised before the Subordinate Judge to his competency to hear the appeals on the ground that the appeals must be deemed to have been presented under Section 75, of the Provincial Insolvency Act, and that the Appellate Court under that section was the District Judge and not the Subordinate Judge. This objection was overruled by the Subordinate judge, and it has not been pressed before me. It is, therefore, unnecessary for me to consider whether there is any substance in this objection.

2. The only point, therefore, that remains to be decided is whether the Executing Court is competent to investigate questions of title as between the insolvent and his son, the other judgment-debtor, in an application under Section 52 of the Provincial insolvency Act. It has been stated on both sides that this point is not covered by any authority. Section 52, under which the applications were made, belongs to a portion of the Act which is headed 'Effect of insolvency on antecedent transactions,' the first section dealing with this part of the law being Section 51, which restricts the rights of creditors under execution. The second is Section 52, followed by Sections 53 and 54, which relate to evidence of transfers as against the creditors. The general policy of the Insolvency Act, is that when a person is adjudicated an insolvent, his estate should be collected together by the Receiver appointed for the purpose, and various provisions, have been enacted in order to enable the Official Receiver to perform this duty of getting the estate together into his hands by comparatively easy methods, and one of such methods, is the method provided for in Section 52, of the Act which applies to property which has been proceeded against in execution and is liable to sale in execution. In such a case the Court which is executing the decree is bound in application to direct the property which has been proceeded against in execution to be delivered to the Official Receiver. It would, therefore, appear that once it is established that there is some property against which execution has issued and which is saleable in execution, and it is found that the property so proceeded against is the property of a person who has been adjudicated insolvent, the Court has nothing more to do than to deliver such property to the Receiver. The section does not contemplate any enquiry at all as regards the extent of the rights of the insolvent in the property proceeded against in execution. Whatever has been proceeded against as the property of the person who was subsequently adjudicated insolvent has to be delivered to the Receiver. The learned Subordinate Judge has given various reasons why in his opinion it would be more convenient that disputes of title as between the insolvent and his co-judgment-debtor should be decided by the Insolvency Court and not by the Executing Court. Apart from these considerations, which I am bound to say are entitled to considerable weight, I am of opinion that the policy of Section 51, is really to put an end as it were to the powers of the Executing Court to proceed against or do anything in respect of property against which it has issued execution as soon as it is found that the judgment-debtor whose property it was proceeded against has been adjudicated an insolvent and an application is made by the Receiver under Section 52 of the Act. The subsequent fate of the property is left to the Insolvency Court to decide if it thinks fit, or to a separate suit. It is obvious that the Executing Court as well as the Insolvency Court cannot very well deal simultaneously with the same dispute. I am of opinion, therefore, that the view taken by the learned Subordinate Judge is right, and that in an application under Section 52 of the Provincial Insolvency Act, where the conditions prescribed therein have been fulfilled, the Executing Court has no other duty to perform than to direct the delivery of the property in question to the Receiver and is no longer competent to investigate or decide questions of title in dispute between the insolvent judgment-debtor and any other co-judgment-debtor or stranger. 3. The appeals, therefore, fail and are dismissed with costs. No separate orders are necessary in the Civil Revision Petitions which are dismissed.


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