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Rengammal Vs. Varadappa Naidu and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in158Ind.Cas.175
AppellantRengammal
RespondentVaradappa Naidu and anr.
Cases ReferredDonepudi Subramaniam v. Nune Narasimham
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 58 and 63 - transfer by debtor--transferee's objection under order xxi, rule 58, allowed--debtor subsequently adjudicated insolvent--application by attaching creditor to annul transfer, competency of--omission to file suit under order xxi, rule 63, effect of. - .....has become conclusive as between the claimant and the attaching decree-holder. but in bringing the suit under rule 63, the attaching creditor acts on his own behalf and by the decision in that suit only the parties to it are bound: donepudi subramaniam v. nune narasimham 56 m.l.j. 489 : 119 ind. cas. 46 : 29 l.w. 349 : a.i.r. 1929 mad. 323; ind. rul. (1929) mad. 878; but in moving the insolvency court the applicant has acted in a representative capacity, that is to say, on behalf of the creditors generally and the fact that the person who has moved, happens to be the creditor against whom an adverse order was previously made is but an accident. it cannot be suggested that the application in question could not have been made by another creditor or by the official receiver had' there been.....
Judgment:

Venkatasubba Rao, J.

1. The Insolvency Court was moved to annul a sale made by the insolvent in his wife's favour. No Official Receiver having been appointed, the application was made by a creditor and the question is, whether he was competent to make it. Before the insolvency petition was filed, this particular creditor had filed a suit against the insolvent and attached the property in question. The judgment-debtor's wife intervened with a claim, which under Order XXI, Rule 58, Civil Procedure Code, was allowed. The contention now put forward on her behalf is, that the order made on the claim petition having become conclusive under Order XXI, Rule 63, as between her and the creditor, ha is precluded from re-agitating the same matter in insolvency. This contention is clearly untenable. Under Article 11 of the Limitation Act, the suit prescribed by Rule 63, should be brought Within one year from the date of the summary order. The argument is, that such a suit not having been brought, the order made on the claim petition has become conclusive as between the claimant and the attaching decree-holder. But in bringing the suit under Rule 63, the attaching creditor acts on his own behalf and by the decision in that suit only the parties to it are bound: Donepudi Subramaniam v. Nune Narasimham 56 M.L.J. 489 : 119 Ind. Cas. 46 : 29 L.W. 349 : A.I.R. 1929 Mad. 323; Ind. Rul. (1929) Mad. 878; but in moving the Insolvency Court the applicant has acted in a representative capacity, that is to say, on behalf of the creditors generally and the fact that the person who has moved, happens to be the creditor against whom an adverse order was previously made is but an accident. It cannot be suggested that the application in question could not have been made by another creditor or by the Official Receiver had' there been one. The fact is that the disability is a personal one and the previous order does not bar the right of the creditors to re-agitate the question. That being so, the application to the lower Court, though made by the same creditor, was made by him in a different capacity and the objection, therefore, cannot prevail.

2. The lower Court's order is right and the Civil Revision Petition is dismissed with costs.


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