The Official Receiver vs Amara Seshayya and Others

Burn, J.—This appeal and this revision petition are brought against the order passed by the learned Subordinate Judge of Guntur in E.P. No.

84 of 1937 in O.S. No. 34 of 1931. The E.P. Was dated 1st March, 1937. The suit had been decreed on the 14th December, 1931, against ninth

defendant for a sum of Rs. 23,741-1-2 with interest and costs. It was alleged in the E.P. that certain sums had been recovered in execution in

1936 and 1937 and that an amount of Rs. 30,582 plus further interest and costs was still due. The prayer in the E.P. was for execution against five

defendants impleaded in the E.P. as supplemental defendants 10 to 14. The supplemental tenth defendant is the Official Receiver of Guntur and

defendants 11 to 14 are said to be the minor undivided sons of K. Venkatasubba Rao the eighth defendant in the suit. K. Venkatasubba Rao had

been adjudicated insolvent in I.P. No. 74 of 1931 and certain items of the joint family property had been sold by the Official Receiver for a sum of

Rs. 6,555. The decree-holder alleged that he had attached the properties of the eighth"" defendant before judgment in O.S. No. 34 of 1931. He

said that he desired attachment by means of a prohibitory order of a sum of Rs. 5,244 representing the 4/5th share of the supplemental defendants

11 to 14 (the minor sons of the eighth defendant) of the sum of Rs. 6,555. He prayed that the Official Receiver, the tenth defendant might be

ordered to deposit this amount in Court so that it might be paid to him to the credit of this decree in O.S. No. 34. He prayed also for the issue of a

sale notice regarding the remaining joint family properties which had been attached and for payment of 4/5th of the sale proceeds of such items to

him. The Official Receiver opposed this application and the minor sons also opposed it. The learned Subordinate Judge overruled these objections

and ordered that the preliminary attachment of the sum of Rs. 5,244 should be made absolute. Hence this appeal and the revision petition which

are filed by the Official Receiver.

Mr. Govindarajachari on behalf of the respondent decree-holder raised a preliminary objection to the maintainability ability of the appeal and

after hearing his arguments and the arguments of Mr. P. Satyaharayana Rao for the appellant we find ourselves obliged to accept the preliminary

objection. Mr. Govindarajachari''s contention was that the Official Receiver did not in this proceeding represent any of the parties to the decree

and that consequently no appeal would lie from the order passed by the learned Subordinate Judge. Mr. Satyanarayana Rao attempted to show

that the Official Receiver could be considered to be a representative of the sons of the insolvent eighth defendant. It has been pointed out by

Rankin, C.J., in the case Mohitosh Dutta v. Rai Satish Chandra Chaudhuri Bahadur 35 C.W.N. 971, that no hard and fast rule can be Laid down

regarding the position of the Receiver in insolvency in such a case as this. The learned Chief Justice observes:

It appears to me that any general statement to the effect that a Receiver is or is not a representative for the purposes of Section 47 of the Code is

necessarily misleading. It all depends on the purpose and nature of the application made by the Receiver whether he is a representative of the

judgment-debtor or not. For some purposes he would be entitled as representing the judgment-debtor to litigate matters u/s 47 of the Code; but

where he comes to the executing Court for the purpose of saying that as the judgment-debtor''s property now belongs to the Receiver the Court

cannot sell for the judgment-debtor''s debt that which is the property of. another person because it has vested in the Receiver for the benefit of the

creditors, then, for that purpose the Receiver is not, in my judgment, a representative of the judgment-debtor. The Receiver in such a case, if he is

not acting u/s 52 of the Provincial Insolvency Act but acting under the usual provisions of the Civil Procedure Code, is really a third party making a

claim.

To the same effect is the decision of a Bench of this Court in Official Receiver of Kistna v. Imperial Bank of India (1934) 68 M.L.J. 78 : ILR 58

Mad. 403. The facts of each case have to be taken into consideration in order to find out whether the Official Receiver is a representative of the

judgment-debtor or not. In the present case the Official Receiver contended that all the property of the insolvent had vested in him with effect from

the date of the insolvency petition. He was therefore in the position of a third party objecting to attachment under Order 21, Rule 58 of the CPC

and when his objection was disallowed by the learned Subordinate Judge he had no right of appeal but had the right of filing a suit under Order 21,

Rule 63 of the Code of Civil Procedure.

As for the contention that he was a representative of the sons of the insolvent, that is based on the fact that in 1933 a suit for partition was filed

against the eighth defendant on behalf of his eldest son a miner at that time who was the only son of the insolvent then in existence. That was O.S.

No. 372 of 1933. Before it was decided in 1936 two other sons had been born to the insolvent. A degree was passed for partition and in that the

Official Receiver was appointed as a Special Receiver with directions to pay out of the insolvent''s estate all the debts that were properly binding

upon the estate and to distribute the rest between the insolvent eighth defendant and his minor sons. It is however not possible to hold that in this

execution proceeding the Official Receiver was representing the sons in his capacity as, Special Receiver in the partition suit. As a matter of fact

the sons were not parties to O.S. No. 34 of 1931 for the simple reason that none of them had been born when that, suit was filed. They were not

parties therefore to the decree. We are told moreover, that in his capacity as Special Receiver in the partition suit the Official Receiver did file a

claim under Order 21, Rule 58, Civil Procedure Code, which was dismissed by the learned Subordinate Judge on the 28th March, 1938.

We think it is clear that in this case the Official Receiver is not a representative of any of the parties to the suit and therefore has no right of

appeal. Sustaining Mr. Govindarajachari''s preliminary objection we must dismiss A.A.O. No. 469 of 1938.

Mr. Satyanarayana Rao then proceeded to argue C.R.P. No. 1427 of 1938 which was filed as an alternative remedy. His main contention is

that the learned Subordinate Judge had no jurisdiction in this case to attach the sum of Rs. 5,244 as representing the share of the insolvent''s minor

sons. To understand this it is necessary to mention the facts which have been very perfunctorily dealt with in the order of the learned Subordinate

Judge. O.S. No. 34 of 1931 was filed on the 7th April, 1931 and the decree was passed on the 14th December, 1931. On the 11th April, 1931,

the insolvent''s property had been attached before judgment. Six days after that Insolvency Petition No. 74 of 1931 was filed against the eighth

defendant and he was adjudicated insolvent on the 10th October, 1932. The partition suit (O.S. No. 372 of 1933) was filed as already mentioned

on the 14th July, 1933 and on the 14th August, 1936, a preliminary decree for partition was passed. This E.P. was filed on the 1st March, 1937.

Now it is quite clear that after partition the interest of the sons cannot be pursued in execution of a decree passed against the father alone. There

are many cases in which this has been Laid down and., it is only necessary to refer to the latest decision in this Court, Km. Kr. Km. Kuppan

Chettiar and Others Vs. Masa Goundan and Others, . If the decree-debt is one binding on the joint family the decree-holder can have a remedy

against the sons after partition by way of a separate suit but he cannot proceed by way of execution against their interest in the joint family

property. Mr. Govindarajachari does not dispute this statement of the law but he contends that the attachment before judgment which was made

on the 11th April, 1931, puts this case into a different category, altogether. His contention is that since the decree-holder in O.S. No. 34 attached

the whole of the joint family property before judgment that attachment enables him to proceed now against the interest of the sons in spite of the

fact that they were not parties to the suit. We are unable to accept this contention. The principle Laid down in the case cited and in the other cases

of the same sort does not make any distinction between attachments effected before judgment and attachments attempted after judgment. It must

be borne in mind that when this attachment before judgment was made no son had been born to the eighth defendant. We have been told from the

Bar by Mr. Govindarajachari that the insolvent''s eldest son (the first plaintiff in the partition suit) was born on the 29th October, 1931, and that

therefore he must have been in gremio matrix on the date of attachment. The documents filed before us do not show the date of birth of any of the

insolvent''s sons. But that is a matter of no importance, because the respondent in this case was not at any time purporting to act against the shares

of the sons in pursuance of the attachment effected before judgment. His application was expressly for a fresh attachment of a sum of money in the

hands of the Official Receiver, For this reason it is also unnecessary to consider a subsidiary contention of Mr. P. Satyanarayana Rao that upon

adjudication the whole of the insolvent''s property vested in the Official Receiver with effect from the date of the Insolvency Petition, making the

attachment before judgment of no avail vide Rdghunath Das v. Sundar Das Khetri (1914) 27 M.L.J. 150 : L.R. 41 IndAp 251 : ILR 42 Cal. 72 .

On this ground alone the revision petition must be allowed. Mr. Satyanarayana Rao for the petitioner has raised two other points. One is that

this decree-holder was made a party to the partition suit (O.S. No. 372 of 1933). It is alleged that in that suit he did not claim any priority over

other creditors and that he is bound by the decree in that suit. The decree provided for what was virtually an administration of the estate of the

insolvent eighth defendant in O.S. No. 34 of 1931 directing the Official Receiver as Special Receiver to sell so much of the insolvent''s property as

was necessary to discharge all his legitimate debts and divide the surplus between the insolvent and his sons. In the present E.P. it is clear that the

decree-holder in O.S. No. 34 of 1931 is attempting to get an'' advantage over the other creditors of K. Venkatasubba Rao. He is trying to collect

Rs. 5,244 towards his decree alone without regard to the debts of the insolvent which are binding upon his estate. It is we think quite true to say as

Mr. Satyanarayana Rao says that this sum of Rs. 5,244 cannot in any sense be held to be the property of the minor sons of K. Venkatasubba Rao.

It represents 4/5th of the sale proceeds of certain items of joint family property. It has no separate existence as the property of the minor sons. It is

merely a part of the joint family estate and in O.S. No. 372 of 1933 it has been found that that sum is liable for the discharge of certain other

debts'' besides the one due to the decree-holder in O.S. No. 34 of 1931. It is impossible therefore to say that the minor sons of K. Venkatasubba

Rao are entitled to this sum of Rs. 5,244. They have been declared to be entitled to their respective shares of whatever may be left after

Venkatasubba Rao''s debts have been discharged. This contention also we think must prevail Mr. Govindarajachari has not been able to show us

any reason why the decree-holder in O.S. No. 34 of 1931 should be allowed to ignore the decree in O.S. No. 372 of 1933 to which he was a

party, and to proceed in execution of his decree in a manner which is contrary to the terms of that decree.

Another contention of Mr. Satyanarayana Rao is that since the cash attached was in the hands of the Special Receiver in O.S. No. 372 of 1933

leave of the Court was necessary before it could be attached. He has referred us to the case Thayumana Pillai Vs. Ramaswami Chettiar and

Others, and the case cited in that decision. It is not necessary to pronounce upon the validity or otherwise of this contention since we are satisfied

that on the grounds already mentioned the petition must succeed.

Mr. Govindarajachari attempted to argue that revision could not be allowed in this case because the Official Receiver had a remedy by way of

suit under Order 21, Rule 63. He refers us to the Full Bench decision Ittiachan v. Velappan I.L.R.(1885)Mad. 484 . In that judgment dealing with

a similar revision petition (266 of 1884) the learned Judges have observed ""we have no power to interfere u/s 622, CPC - the petitioner''s, remedy

is by suit."" From this we are asked to infer that the Full Bench Laid down that whenever there is a remedy by way of suit the remedy by way of

revision cannot be allowed. We can only say that this decision has never been considered in this Court as laying down any such proposition. In

point of fact the learned Judges do not say that because the petitioner has a remedy by way of suit therefore they have no power to interfere by

way of revision. Cases in which this Court has interfered in revision in spite of the fact that the petitioner had another remedy are too numerous to

be quoted. The principle that revision should not be allowed where another remedy is available is a principle which may very conveniently be

applied at the stage of admission. This revision petition was admitted by Mr. Justice Varadachariar nearly two years ago and since it has been

admitted we think that it would be wrong at this stage to say that it must be dismissed merely because the Official Receiver might have proceeded

by way of suit. Since it is clear to us that the learned Subordinate Judge had no jurisdiction to attach this money in the hands of the Official

Receiver and Special Receiver it would be an unnecessary multiplication of legal proceedings to refer the petitioner now to a suit. We are satisfied

that we have jurisdiction to act u/s 115 of the CPC and to allow this petition.

The order of attachment of the sum of Rs. 5,244 is accordingly set aside and E.P. No. 84 of 1937 dismissed. The petitioner will recover his

costs of this petition from the first respondent (plaintiff in O.S. No. 34 of 1931) both here and in the Court below.