D. Soundararajan vs B.S. Gopalakrishnan and Others

Bellie, J.—The 10th defendant is the appellant.

The facts of the case are : The plaintiff who obtained a money decree against one Guruswamy and Venkatesan in O.S. No. 18 of 1972 on the

file of the District Court Dharmapuri, in execution thereof, attached the whole of the suit properties and brought them to sale in E.P. No. 13 of

1974. While so, defendants 1 to 9 filed O.S. No. 64of 1974 and got a declaration that they had title to 2/3rd share in the property and that suit

was decreed. The before, in E.P. No. 44 of 1974 the plaintiff reattached 1/3rd share alone as belonging to the judgment-debtors and he himself

purchased it in court-auction held on 20.4.1977. While one of the judgment-debtors, viz., Venkatesan filed I.P. No. 5 of 1974 on 20.6.1974 and

was adjudged as insolvent on 23.7.1975. In the insolvency proceedings the 10th defendant purchased 1/12th share of Venkatesan in item 2 of the

suit properties on 31.1.1977.

Now the plaintiff filed the suit for partition of 1/3rd share of the suit properties as belonging to both Guruswamy and Venkatesan. Defendants 1

to 9 filed written statement, but, for the purpose of this appeal, we are not concerned with that. The 10th defendant filed a written statement

contending that by virtue of the purchase of 1/12th share of Venkatesan in the 2nd item in the insolvency proceedings, he is entitled to that share.

The trial Court, on consideration of the issues framed in the suit, held that because of the attachment of 1/3rd share of both the judgment-

debtors in E.P. No. 44 of 1974 on 8.8.1974, the subsequent purchase of 1/12th share of Venkatesan in the 2nd item by the 10th defendant on

31.1.1977 is hit by the principle of lis pendens. It further held that the purchase by the plaintiff in the court auction on 20.4.1977 is binding on the

10th defendant who purchased the 1/12th share of Venkatesan in the 2nd item on 31.1.1977. On these findings the trial Court rejected the

contention of the 10th defendant and in the result decreed the suit holding that the plaintiff is entitled to 1/3rd share of the suit properties.

The two points that arise for consideration in this appeal are:

(1) Whether the court-auction sale held on 20.4.1977 is unaffected by the insolvency proceedings and that sale is binding on the 10th defendant

who has purchased 1/12th share of Venkatesan in the 2nd item in the insolvency proceedings on 31.1.1977?

(2) Whether by virtue of the attachment of the property prior to the adjudication on 23.7.1975 the purchase by the 10th defendant in the

insolvency proceedings is hit by lis pendens and, the before, that purchase is invalid?

It is argued on behalf of the appellant/10th defendant that since Venkatesan has been adjudged insolvent on 23.7.1975 and his share in the

property got vested in the Official Receiver u/s 28 of the Provincial Insolvency Act (hereinafter referred to as ''the Act'') the subsequent Court

auction sale on 20.4.1977 in favour of the plaintiff is invalid. As against this, it is contended on behalf of the plaintiff that he was not aware of the

insolvency proceedings and he has purchased the property in court-auction in good faith and, the before u/s 51(3) of the Act he has acquired good

title as against there ceiver and, the before, his purchase in the Court auction must prevail over the sale by the receiver in favour of the 10th

defendant. Both sides before me argued on this point citing some decisions. But, in view of the Division Bench decision of this Court in

Poongavanammal v. Chinnathambi Gounder 93 L.W. 675, which has considered all the decisions touching the point, it is sufficient to refer to this

decision alone. No decision subsequent to this has been brought to my notice. The Division Bench categorically held as follows:

We are Of the opinion that having regard to this decision we have, to simply follow the earlier views of this Court and held that the execution sale

in favour of the appellant, which admittedly took place after the adjudication of Dandapani Reddi as an insolvent cannot prevail and Section 51(3)

of the Act will have no application in the case of the appellant herein.

It is, the before, clear that a court-auction sale held subsequent to the adjudication as insolvent, will be of no effect, and to such a sale, Section

51(3) of the Act will have no application. Mr. Selvaraj, learned Counsel for the plaintiff/1st respondent herein would only pray that the matter

maybe referred to a Full Bench in view of the conflicting decisions referred to in the said Division Bench judgment itself. But, in the very same

Division Bench judgment itself, the learned Judges have stated that a request was made for referring the point to a Full Bench, but they did not

think it necessary to do so. This being the case, I do not think that the request of Mr. Selvaraj can be acceded to.

Coming to the second point, Mr. Selvaraj would contend that since the property has been attached on 8.8.1974 itself and the order of

adjudication was only on 23.7.1975 and the sale in the insolvency proceedings in favour of the 10th defendant was subsequently on 31.1.1977,

this sale in favour of the 10th defendant is hit by lis pendens and, the before, it is void u/s 52 of the Transfer of Property Act.

A reading of Section 52 of the Transfer of Property Act would show that during the pendency of a suit or proceeding any party thereto cannot

transfer or otherwise deal with any property in respect of which any right directly and specifically is in question so as to affect any other party in the

suit or proceeding under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may

impose. The sale in question is by the Official Receiver and it was in the insolvency proceedings and the Official Receiver was not a party to the

suit O.S. No. 18 of 1972 or in any execution proceedings of the decree passed therein. The before, the Sale by the Official Receiver will not come

within the purview of Section 52 of the Transfer of Property Act, Mr. Selvaraj submits that the Official Receiver deals with the property of the

insolvent, who is a party to the suit and, the before, he (Official Receiver) must also be deemed to be a party to the suit. I am unable to agree. u/s

28 of the Provincial Insolvency Act, on adjudication the property of the insolvent vests in the Official Receiver. The before, it is by operation of law

the insolvent ceases to be the owner and the property gets vested in the Official Receiver and, the before, it cannot be said that the Official

Receiver is only a representative of the insolvent. The learned Counsel in support of his contention, cites A. Kulandaivelu Pillai Vs.

Sowbagyammal, , and points out that in this decision it has been held that a sale by the Official Receiver is a private sale and it is hit by the principal

of lis pendens. But the facts of that case show that the Official Receiver himself has been made a party to that suit in the place of insolvents,

Further, in that case, there was a charge decree, whereas in our case, there is only an attachment. Thus, there is much difference between the facts

in that case and our case and hence that decision will not help the plaintiff. On the side of the appellant/10th defendant a decision of the Division

Bench of Nagpur High Court in AIR 1943 101 (Nagpur) , was brought to my notice wherein it has been held that Section 28(2) of the Provincial

Insolvency Act read with Sections 51 and 52 of the said Act indicates that an attaching creditor of the insolvent''s property, has no priority over the

receiver in insolvency. With respect, I agree with this. The before, I hold that because of the attachment of the property in O.S. No. 18 of 1972,

the sale by the Official Receiver to the 10th defendant, is not hit by the principal of lis pendens.

Mr. Selvaraj next submits that u/s 64 of the Civil Procedure Code, the sale by the Official Receiver is void. This section reads thus:

Private alienation of property after attachment to be void : Where an attachment has been made, any private transfer or delivery of the

property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such

attachment, shall be void as against all claims enforceable under the attachment.

Under this section, a private transfer of the property attached shall be void as against all claims enforceable under that attachment. This section will

apply only to voluntary transfers and not to any involuntary transfers. It must be remembered that an attachment has merely the effect of preventing

private alienation to the prejudice of claims under that attachment. It must also be remembered that an attachment does not convey title, charge,

lien or priority in favour of the attaching creditor. It merely disables a debtor from transferring the property and not any transfer by operation of law

such as involuntary sale under a decree of Court or enforced execution. u/s 28 of the Act, on the date of adjudication, by operation of law, the

property of the insolvent vests in the Official Receiver and for rateable distribution among the creditors he (Official Receiver) sells the property.

The before, in my view, it cannot at all be said that a sale by an Official Receiver is a sale coming within the purview of Section 64, Civil Procedure

Code.

Thus, I find that the sale by the Official Receiver has to prevail over the execution sale in which the plaintiff has purchased 1/12th share of

Venkatesan along with others'' share. Hence, the 10th defendant will be entitled to the said 1/12th share.

Hence, the appeal is allowed and the decree passed by the trial Court is modified so as to read that the 10th defendant would be entitled to

1/12th share in item 2 of the suit properties and the plaintiff will be entitled to the balance share after deducting the said 1/12th share from 1/3rd

share purchased by him and also to the 1st item. Considering the circumstances, there will be no order as to costs.