Ramar Udayar and Another vs The Official Receiver

S.S. Subramani, J.—The decree holder and auction purchaser in O.S.No. 839 of 1978, on the file of the District Munsif''s Court, Tirukoilur,

are the revision petitioners.

The respondent in this Case is the Official Receiver. The matter arises in execution wherein the respondent filed E.A.I 103 of 1984 in E.P.No.

429 of 1980 in the said suit, for setting aside the sale.

The relevant facts are as follows:

The first Petitioner herein filed O.S.No. 438 of 1978 on 20.6.1978. The suit was filed for recovery of money. One Ayyan Padayachi had

borrowed certain amount from the first petitioner herein, for family expense. The suit was filed after the death of the borrower, and the defendants

in the suit were his legal representatives, Namely, sons and daughters. One of the sons was Pavadai Padayachi.

The suit was decreed on 25.10.1979, allowing the first petitioner herein to realise the amount from out of the estate of the deceased in the hands

of his legal representatives.

In execution of the decree, the first petitioner filed E.P.No. 429 of 1980 on 18.8.1980. The properties belonging to the original borrower were

attached. The attachment was effected on 9-2-1981 and the properties were directed to be sold. The proclamation was settled on 23.1.1982 and

the properties were sold on 23.8.1982, as per order for sale on 9.7.1982. In the meanwhile, one of the legal representatives of the original

borrower, namely, Pavadai Padayachi filed I.P. on 28.7.1982. A Receiver was appointed on 7.9.1982 and notice was directed to be issued to the

creditors on 8.9.1982.

The respondent herein, on the basis of his appointment as ad- interim Receiver, filed the present application for setting aside the sale on the

ground that the properties are vested in him under the Provincial Insolvency Act. Since the properties are vested in him for the benefit of all the

creditors, according to him the sale held on 23.8.1982 is not valid.

The second petitioner herein was the court auction purchaser.

Both the petitioners filed objections to the petition filed by the respondent. According to them, the sale was held properly. It is also contended

that since the property was sold for antecedent debt of the father of the insolvent, the property inherited by the insolvent will also be subject to the

liability. According to them, the said liability amounts to a charge and hence any vesting will be subject to the charge. It is further contended that

apart from the insolvent there are other legal heirs who are also defendants in the suit, and, as against them, the sale is valid, and if at all the sale is

to be set aside, it can only be in respect of that share of the insolvent in the estate. It was further contended by them that even though the I.P. was

filed on 28.7.1982, for the Receiver to take action, the relevant date to be taken into account is the date of admission of the Insolvency petition u/s

51 of the Provincial Insolvency Act. The admission was only subsequent to the date of sale (23.8.1982) and hence the Receiver cannot have any

right to pray for setting aside the sale, as, on the date the property did not belong to the insolvent.

The executing Court, as per order dated 15.12.1984, allowed the Application of the respondent, and the sale was held to be bad. The

executing Court was of the view that u/s 28(7) of the Provincial Insolvency Act, the vesting takes place when the Insolvency petition was filed, i.e.

on 28.7.1982 the property is vested in the Receiver. Taking that view, the sale was set aside. The petitioners filed C.M.A.No. 118 of 1986 before

the District Court, Cuddalore. The lower appellate Court also confirmed the decision of the executing Court. It is against these decisions the

Revision petitioners have filed this Civil Revision Petition.

The first question to be considered is, whether the contention of the petitioners that the property is subject to a charge or lien, is correct.

The decree is passed u/s 52 of the Code of Civil Procedure, Section 52, C.P.C. provides that ''where a decree is passed against a party as the

legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by

the attachment of any such property.'' A mere reading of the Section makes it clear that the petitioners are not entitled to any charge. It provides

for attachment and sale, for enforcing the decree.

The question also came for consideration in Gade Lakshme Narasimham Pantulu and Others Vs. Pillalamarri Jaganadha Row Pantulu and

Others, . In that decision, the Bench held that the decree holder is not getting any charge or lien, and there is no question of any priority for them in

insolvency proceedings. In that decision, their Lordships held thus:-

Where after the passing but before the execution of a decree for realisation of the debts of a deceased debtor from his estate in the hands of his

heirs the heirs become insolvent, the deceased''s estate like other assets of the insolvent vest in the official Receiver and is immune from execution

proceedings under ""S.16 (2) of the Provincial Insolvency Act and the creditor must prove his debt like other unsecured creditors.

The learned counsel for the petitioners was not in a position to distinquish the above law, declared by this Court. The said decision is binding on

this Court, and hence the first contention of the learned counsel for the petitioners is repelled.

The second contention that is raised is that apart from the insolvent, there are other legal heirs against whom a decree has been passed. Only

Pavadai Padayachi was declared insolvent, and if at all there is a vesting, the vesting will be in respect of the share of Pavadai Padayachi.

According to the learned counsel for the petitioners, there are five legal heirs and they have inherited the properties as tenants-in-common. If so,

only the one-fifth share of the insolvent can vest in the Receiver. The setting aside of the sale in full by the courts below was, therefore, incorrect.

The learned counsel for the official Receiver did not dispute the said point. If so, the sale can be set aside only in respect of the insolvent''s share in

the property. The orders of the Courts below therefore require modification, in case I find that even in respect of the insolvent''s share, the sale is

liable to be set aside.

The learned Counsel for the petitioners has a further contention that even though the insolvency petition was filed on 28.7.1982, the power of

the Receiver to pray for setting aside the sale will arise only when the property vests in him. According to the learned counsel, the Receiver was

appointed only after the insolvency petition was admitted and taken to file. According to them the Receiver was appointed on 7.9.1982, and even

before that, the sale has taken place. If so, on the date when the sale took place, there was no property belonging to the insolvent which could vest

in the Receiver. The question that has to be considered is, whether the property vests on the date of presentation of the petition or only on the date

of admission of the petition.

The relevant Section under the Provincial Insolvency Act are, Section 18 and 28. Section 18 deals with procedure for admission of petitions. It

reads that the procedure laid down in the Code of Civil Procedure, 1908 with regard to admission of plaintiff shall, so far as it is applicable, be

followed in the case of Insolvency petitions. Section 28 deals with effect of an order of adjudication. The relevant portion of Section 28 is sub-

section (7). It reads thus:-

An order of adjudication shall relate back to and take effect from the date of presentation of the petition on which it is made.

Section 51 deals with the effect of insolvency on antecedent transaction. Sub-section (1) of Section 51 reads thus:-

Where execution of a decree is issued against the property of a debtor, no person shall be entitled to the benefit of the execution against the

Receiver except in respect of the assets realised in the Course of execution by sale or otherwise before THE DATE OF ADMISSION OF THE

PETITION.

Dealing with these provisions, an argument was taken that the presentation of petition and admission of petition are different, and only after he

insolvency petition is taken into file, the Court takes cognizance of the proceedings. Only thereafter the question of vesting of the property in the

Receiver shall take place. For the said purpose, Section 20 of the provincial Insolvency Act was also brought to my notice. Ad-interim Receiver is

also appointed when an insolvency petition is admitted to file. In this case, the receiver was appointed on 7.9.1982 and notice was received by the

creditors on 8.9.1982.

In Jooluri Guruvayya Vs. The Official Receiver, a learned Judge of this Court followed an earlier Judgment of the Lahore High Court reported

in Charanjit Singh v. Sardar Mohammed AIR 1935 Lah 690 The learned Judge of this Court held that ''the Official Receiver''s title to the

insolvent''s property does not extend to the assets realised in the course of execution levied against the property before the date of the admission of

the Insolvency Petition''. His Lordship took note of the Provisions in Section 28(7) of the Provincial Insolvency Act and also the effect of Section

51 of the Act. Taking these Section together, the learned Judge said that any assets realised between the date of petition and the date of admission

will not vest in the Receiver. Dealing with that point, the learned Judge held as follows:-

No direct decision of this Court dealing with this point has been brought to my notice and it has to be decided with reference to the relevant

provisions of the Act. It is true that there are no words in Section 28(7) making the operation of that provision subject to the other provisions of

the Act, but the Official Receiver''s title to the property of the insolvent as on date of the presentation of the insolvency petition rests on the

combined operation of the provisions of Section 28 (2) and (7), and Sub-section(2) excepts from its operation to other provisions of the Act

including Section 51. It is therefore quite clear that the Official Receiver''s title to the property of the insolvent does not extend to the execution

levied against the property of the insolvent before the date of the admission of the insolvency petition. To hold otherwise would be to nullify the

provisions of Section 51. The Lahore High Court has taken the same view in AIR 1935 Lahore 690...............

In AIR 1935 Lahore 690 (supra), relied on by the learned Judge, the facts are more or less similar to the one on hand. In that case, an

insolvency petition was filed on 14.12.1932 and the date was fixed for examination of the petitioner for the purpose of admission on 17.12.1932.

In between those dates, certain amounts were realised from the insolvent. After the petition was admitted, the receiver filed an application to bring

that amount towards the estate of the insolvent. The said claim of the Receiver was repelled by the learned Judge. Dealing with that claim, his

Lordship held thus:-

I do not agree with the view of the District Judge that though the petition for insolvency was admitted on 17th December 1932, the date of

admission must relate back to the date of presentation, and that in law 14th December must be regarded as the date of admission. The words

presentation of petition"" and ""Presentation of Plaint"" have been used in various sections of the provincial Insolvency Act and the Civil Procedure

Code. The words ""admission of the plaint"" and ""admission of the petition"" have been used in other provisions of the two Acts referred to above.

There seems to be no warrant for the proposition that once a petition is admitted, the date of admission must relate back to date of the

presentation of the petition, so far as the order of adjudication is concerned, it relates back and takes effect from the date of the presentation of the

petition, on which it is made. This however takes place in pursuance of a specific provision of law contained in Sub-section (7), Section 28,

Provincial Insolvency Act. In the absence of a provision to this effect either in the Provincial Insolvency Act or in the Civil Procedure Code, it

cannot be said that the date of admission must be taken to be the date of the presentation of the petition. It was held in 130 I.C.559 (1) that

Section 51, Provincial Insolvency Act, did not deprive the creditors of the fruits of their decrees in respect of moneys which were brought into

Court between the date of the presentation of petition for insolvency and the date of its admission. Section 51 of the said Act refers to the date of

admission and not to that of the presentation of the petition. I therefore hold that in the present case 17th December 1932 must be taken to be the

date of the admission of the petition for insolvency.

As stated earlier, Section 18 deals with admission of the insolvency application. It says that the provisions of the CPC will apply as far as

possible. Under Order 4 Rule 2 of the Code of Civil Procedure, a procedure for registering a suit is contemplated. It says

The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose arid called the register of Civil Suits. Such

entries shall be numbered in every year according to the order in which the plaints are admitted.

So normally when a suit is entered in a Register, it must be deemed to have been admitted. Order 7, Rule 9, C.P.C. also says that ''the plaintiff

shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it; and, if the plaint is admitted, shall

present, within such time as may be fixed by the court or extended by it from time to time, as many copies on plain paper of the plaint as there are

defendants,............'' According to the Procedure of the Civil Procedure Code, Section 21 of the Provincial Insolvency Act provides that at the

time of making an order admitting the petition on a subsequent time before the adjudication, the Court may order the debtor to give reasonable

security for his appearance. Taking all these provisions together, it can be seen that an insolvency application is taken cognizance of by the Court

only when it is admitted.

In Ramanatha Chettiar v. Subramanian Chettiar and Anr. AIR 1924 Mad 248 a Bench of this Court held that when an interim receiver is

appointed, it can be taken that insolvency petition is taken to file. In that case, the petition was filed on 1.7.1922 and the interim receiver was

appointed on 4.7.1922. The question in that case was, whether a sale which, has taken place subsequent to 4.7.1922 is valid. Their Lordships

held that since Receiver is appointed on 4.7.1922, which date must be taken as the admission of the insolvency petition, the sale was invalid.

In K. Sambasiva Aiyar, and Ors. v. Official Receiver AIR 1942 Mad 88, a Learned Judge of this Court also took note of the difference in the

wording of "" Presentation of the insolvency petition"" and ""admission of the petition"". But, under the facts and circumstances of the case, the learned

Judge held that on the date of the presentation of the petition itself, the process of admission of the petition was over. Taking that view, the

Learned Judge held that the subsequent realisation of the amount from the estate can be claimed by the Official Receiver.

In view of the above decisions, the property will vest in the Receiver, only when the insolvency application is admitted. If that be so, on the

date when the Receiver was appointed, namely, on 7.9.1982, there is no property belonging to the judgment debtor which had already been sold

on 23.8.1982.

In this connection, Section 52 of the Provincial Insolvency Act also has some relevance. It reads thus:-

Duties of Court executing decree as to property taken in execution.......

Where execution of a decree has issued against any property of a debtor which is saleable in execution and before the sale thereof notice is given

to the court executing the decree that an insolvency petition by or against the debtor has been admitted, the Court shall, on application, direct the

property, if in the possession of the Court, to be delivered to the receiver, but the costs of the suit in which the decree was made and of the

execution shall be a first charge on the property so delivered, and the receiver may sell the property or an adequate part thereof for the purpose of

satisfying the charge.

Before a Receiver could seek to set aside a sale or direct that the property belonging to the Judgment debtor to be delivered to the receiver,

two conditions have to be satisfied. First is, that notice must be given to the executing Court regarding the admission of the petition of insolvency by

or against the Judgment-debtor. The second is, that there should be an application before the executing Court for delivery of such property to the

receiver. Considering these questions, in C. Ponnudurai, Official Receiver Vs. K.A. Kumaraswamy Mudaliar and Others, , this Court held that ''an

executing court while executing a decree passed against the insolvent need not stay its hands merely on the admission of an insolvency petition.'' It

is true that according to Section 28(7) of the Provincial Insolvency Act, once an order of adjudication is made, it relates back to the date of filing

of the petition, but that will not have the effect of nullifying the judicial orders made in execution of the decree against the Judgment debtor. Section

52 of the Act deals with a situation where a petition for execution of a decree was issued against the property of a debtor and there had been a

receiver appointed by the Insolvency Court, and as a result of which the property is vested in him. Section 52 of the Act will have no application

when a Receiver has not been appointed in respect of the property of the insolvent. In this case, no receiver was appointed on the date when the

property was sold. Even though the fact of confirmation of sale was subsequent, it relates back to the date of sale on 23.8.1982. So, on the date

when the Receiver was appointed, there is no property belonging to the insolvent and the receiver cannot make an application either to set aside

the sale or to return the property to him after having the sale set aside. It was not an asset of the insolvent.

The learned counsel appearing for the respondent relied on the decision reported in Dinanath Shaligram Marvadi Vs. Maroti Totaram Shimpi

and Others, That decision has no application to the facts of this case. There, the property was purchased after the insolvency petition was admitted

to file. That decision to a certain extent, goes against the interest of the respondent, for, that also makes a distinction between the ""presentation of

the petition"" and ""admission of the insolvency petition."" In view of the fact that the sale was subsequent to the date of admission of the petition, the

learned Judge of that Court held that the Receiver is competent to file the petition to be set aside the sale and get the property for the benefit of all

the creditors.

In view of the above position of law, I set aside the Judgments of the Courts below and allow this Revision petition. The application filed by the

Receiver for setting aside the sale is dismissed. I hold that the sale held in this case on 23.8.1982 is valid, and that there are no grounds for setting

aside the sale. The Civil Revision Petition is allowed, with no order as to costs.