N.A.R. Rm. Raman Chettiar vs P.N. Muthupalaniappa Chettiar

Alfred Henry Lionel Leach, C.J.—In 1931 a Nattukottai Chettiar named V. P. L. Palaniappa Chettiar, was adjudicated an insolvent by the

District Court of Amherst, Burma. The insolvent''s estate was said to include certain immovable property in the Ramnad District, and in

consequence the District Court of Amherst requested the District Court of Ramnad to aid it u/s 77 of the Provincial Insolvency Act in the sale of

the property.

The District Court of Ramnad, as it was bound to do acted on the request of the Amherst Court and on the 29th of August, 1934 sold the

property through the Official Receiver, the purchaser being the respondent. A month later, the appellant filed an application in the Amherst Court

u/s 4 of the Act, in which he claimed that the property which had been sold by the Ramnad Court belonged, not to the insolvent, but to his

daughter by virtue of an arbitration award made in the year 1916. The appellant claimed title to the property by reason of a conveyance in his

favour executed by the insolvent''s daughter on the 14th March, 1934. The District Judge of Amherst considered that the proper Court to deal

with this application was the Ramnad Court inasmuch as the proceedings with regard to this particular property had been transferred from Amherst

to Ramnad. Accordingly, he returned the petition to the appellant in order that he might file it in the District Court of Ramnad. The appellant

accepted this decision and in due course represented the petition to the District Court of Ramnad. For some reason which has not been disclosed

the appellant did not proceed any further in the matter and the petition was dismissed for default. The result was that on the 12th February, 1936

the Official Receiver executed a conveyance of the property in favour of the respondent.

On the 7th of December, 1936 the appellant filed a petition in the District Court of Ramnad in which he asked that possession of the property

be re-delivered to him, and in his affidavit in support of the petition he set up the title which he had claimed in the earlier petition. Instead of making

the application u/s 4 of the Provincial Insolvency Act the appellant purported to make it u/s 5 of that Act and under Order 21, Rules 100 and 101

of the Code of Civil Procedure. Neither Section 5 of the Provincial Insolvency Act nor Order 21 of the CPC applied, but the District Judge

proceeded with the hearing of the application and by an order dated the 19th of July, 1937 directed that the property should be re-delivered to the

appellant who, in his opinion, had established a prima facie title and had been in possession on his own account from the 25th November, 1936.

The respondent then appealed to this Court. When the case was in the District Court the respondent raised the question whether that Court had

jurisdiction to entertain the application. His contention was that the proper Court to deal with the matter was the Amherst Court, but the objection

was overruled. The respondent raised the question again in his appeal to this Court and his objection was accepted by Wadsworth, J., from whose

judgment this appeal has been preferred.

The District Court of Amherst had asked the District Court of Ramnad to act in its aid in deciding the question of the title to this property, and

having left the matter to the decision of the Ramnad Court, that Court had full jurisdiction by reason of Section 77 of the Act. That section says that

all Courts having jurisdiction in insolvency shall severally act in aid of and be auxiliary to each other in all matters of insolvency and an order of a

Court seeking aid with a request to another Court shall be deemed sufficient to enable the other Court to exercise jurisdiction. It is true that when

the District Judge of Amherst decided that the Ramnad District Court was the proper Court to deal with the earlier petition, there was no special

letter of request, but in our opinion, there was no necessity for this. The request had been made at an earlier stage and in directing the appellant to

file in the District Court of Ramnad his petition asking for adjudication on the question of title the District Court of Amherst acknowledged that it

had left the District Court of Ramnad to decide all matters relating to this particular property.

Mr. Raja Ayyar on behalf of the respondent has conceded that the fact that the earlier petition was dismissed for default does not preclude the

appellant from filing a fresh application u/s 4 of the Provincial Insolvency Act although naturally he has pointed out that this application is not one

under that section. The Court must, however, treat it as being made u/s 4. The fact that the appellant in error invoked Section 5 of the Act and the

CPC does not preclude the Court from treating the petition as being filed under the appropriate section, namely, Section 4, and that is what we

propose to do in this case. If this course were not adopted, it would only lead to further delay and unnecessary expense. It is convenient to both

parties to regard the petition as being under the proper section.

Treating it as an application u/s 4, the question of title falls to be decided, and we consider that the proper Court to decide this question in the

circumstances is the District Court of Ramnad. The Court which adjudicated the insolvent has recognised that the District Court of Ramnad had full

jurisdiction in the matter as the result of the request made u/s 77 and the District Court of Ramnad has accepted jurisdiction. In these

circumstances, the case will be remanded to the District Court of Ramnad for decision on the question of title. Each side will of course be entitled

to adduce further evidence, if so desired.

The District Judge of Ramnad will be directed to intimate to the District Court of Amherst that the question of title to this property is still being

debated and to request the Amherst Court not to distribute the money which the respondent has paid for the property until the question has been

finally decided. If the appellant succeeds, the respondent, of course will be entitled to the return of his money. If the appellant fails, the property will

be re-delivered to the respondent and the sale will stand.

The appellant has only himself to blame for the present position. In the first place he ought not to have allowed the earlier petition to go by

default and in the second place he ought to have framed his present petition properly. As he is to blame in both these respects, we consider that

there should be no order for costs in his favour.