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Arunachellam Chettiar by Agent Sivaramanchettiar Vs. Nayanna Naicker and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in94Ind.Cas.126
AppellantArunachellam Chettiar by Agent Sivaramanchettiar
RespondentNayanna Naicker and ors.
Excerpt:
provincial insolvency act (v of 1920), sections 20, 52 - interim receive--delivery of property. - .....in section 52, is restricted to a receiver, appointed after the adjudication, or will apply to an interim receiver appointed under section 20, and whether the application under that section is restricted to one by the receiver or may be made by the insolvent or any one else, both of which points raise questions of difficulty which it is not necessary to answer in this case, it is' perfectly clear to us that an application under section 52 to the executing court to deliver property to the receiver can only be a valid application if the receiver has been clothed by the insolvency court with powers to take possession of the insolvent's property. to hold otherwise would open the way, e.g., for such a delivery of the insolvent's property to an interim receiver in the teeth of a refusal by.....
Judgment:

In A.A.O. No. 234 of 1923.

1. The application to the District Munsif in the case was by the insolvent and was presumably under Section 52 of the Provincial Insolvency Act V of 1920. The District Munsif dismissed it on the short ground that it was not an application by the Official Receiver. The insolvent went up to the District Judge, who purporting to exercise the power of an Insolvency Court and presumably with a view of ensuring that the Executing Court acted properly under Section 52, set aside the execution sale. Neither before the District Munsif nor before the District Judge was there any prayer by the applicant to hand over the property to the Receiver. It is difficult to see how the case could come under Section 52 at all.

2. Further whether the term 'Receiver' used in Section 52, is restricted to a Receiver, appointed after the adjudication, or will apply to an interim Receiver appointed under Section 20, and whether the application under that section is restricted to one by the Receiver or may be made by the insolvent or any one else, both of which points raise questions of difficulty which it is not necessary to answer in this case, it is' perfectly clear to us that an application under Section 52 to the Executing Court to deliver property to the Receiver can only be a valid application if the Receiver has been clothed by the Insolvency Court with powers to take possession of the insolvent's property. To hold otherwise would open the way, e.g., for such a delivery of the insolvent's property to an interim Receiver in the teeth of a refusal by the Court to confer on him powers to take delivery. In the present case the interim. Receiver was not clothed with powers to take possession of the insolvent's property. In this view the District Munsif's order was correct; the District Judge had no jurisdiction to interfere (1), because there was no request before him that the property was to be delivered to the Receiver and (2), 'because the Receiver was not authorised to take delivery. The order must be set aside and the District Munsif's order restored with costs.

In A.A.A.O. No. 2 of 1924.

3. It follows that the sale should have been confirmed by the District Munsif, as no valid application to stop it had been put in before him within 30 days of the sale.

4. We allow the appeal. The appellant will get his costs in the two lower Courts and not in this Court.


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