A.M.A.M.R. Palaniappa Chettiar and Others vs Palani Goundan

Venkataramana Rao, J.—Sinna Goundan and his three sons were members of an undivided Hindu family. The respondent in this case filed a

suit against the father, Sinna Goundan alone and obtained an attachment before judgment of the entire joint family property belonging to him and

sons. He subsequently obtained a decree on the 12th July, 1933. Five months after he obtained the said decree, the father was adjudicated

insolvent on or about the 11th November, 1933. Subsequent to the Order of adjudication the petitioner with the leave of the Insolvency Court filed

a suit against the father and the sons and obtained an attachment before judgment of the sons'' shares alone in the joint family property on the 4th

February, 1934. Subsequently he got a decree on the 21st March, 1934. Then he filed an application for execution on the 31st July, 1934, to sell

the sons'' shares in the suit property and on the 19th March, 1935 the sale proceeds were realised in execution and deposited into Court.

Meanwhile the respondent filed an execution application on the 13th March, 1935 to sell the entire joint family property and on the 22nd M*arch,

1935, applied for rateable distribution of the sale proceeds. Thf learned District Munsiff allowed his application. It is against this Order that the

above Civil Revision Petition has been filed.

Mr. Sivaramakrishna Aiyar, on behalf of the petitioner, has raised two contentions before me : (1) that the decrees obtained by the petitioner

and the respondent cannot be deemed to be decrees against the same judgment-debtors; and (2) that the respondent not having obtained leave of

the Insolvency Court before he filed his execution petition he is precluded from getting any relief either by way of execution or by way of rateable

distribution where the sons'' interests in the property are sought to be sold and his remedy is only through the Official Receiver in insolvency

proceedings. So far as the first contention is concerned, the matter is covered by authority. A decree obtained against the father and a decree

against the father and sons have been held to be decrees against the same judgment-debtor in Ramanathan Chettiar Vs. Subramania Sastrial and

Others, . The said decision was followed by a Full Bench of this Court in Vayi Ramakrishna Chettiar represented by agent Subramania Aiyar and

Others Vs. Kasi Viswanatha Chettiar, . See also my judgment reported in Swaminatha Ayyar Vs. Saivu Rowthan and Another, and I see no

reason to dissent from this view.

In regard to the second contention, the point urged by Mr. Sivaramakrishna Aiyar, is this. By virtue of Sections 2(d) and 28 of the Provincial

Insolvency Act the power of the father to dispose of the sons interests has been held to be property vesting in the Official Receiver on the father

becoming insolvent and the decision in Adusumilli Gopalakrishnayya Vs. Peyyeti Gopalam and Others, , which held that the moment there has

been an attachment of the sons'' shares the power of the Official Receiver to deal with the property goes is not reconcilable with the Full Bench

decision in T.S. Balavenkataseetharama Chettiar and Another Vs. The Official Receiver and Others, . Another point raised by him in this

connection is this : the moment the father''s insolvency has supervened the attachment before judgment must be deemed to have ceased and an

application for execution would be contrary to the provisions of Sections 51 and 28 of the Insolvency Act. Both these points have been dealt with

in a recent judgment of this Court reported in The Official Receiver, Coimbatore v. Arunachalam Chettiar (1933) 66 M.L.J. 412. There the facts

were as follows: - A suit was filed against the father and an attachment before judgment was obtained of a certain joint family property wherein the

father and son were interested. Subsequent to the attachment before judgment a decree was obtained on the 11th December, 1926, and two years

thereafter there was an Order of adjudication adjudicating the father insolvent on the 6th January, 1928. Subsequent to the Order of adjudication

there was an application for execution and sale of the entire joint family property. The learned Judges held that though it may not be permissible for

the decree-holder to sell the father''s interest without the leave of the Insolvency Court, so far as the sons'' interests are concerned they cannot be

deemed to be the property of the insolvent, nor can the Official Receiver by virtue of the attachment before judgment be said to have any power of

disposal following Adusumilli Gopalakrishnayya Vs. Peyyeti Gopalam and Others, and it was therefore competent without the leave of the

Insolvency Court for the decree-holder to attach and sell the sons'' interest in the property though the prayer was for attachment of the entire joint

family property. It follows from this decision that the respondent is entitled to rateable distribution. I therefore uphold the Order of the lower Court

and dismiss the Civil Revision Petition with costs.