Viswanthan Chettiar vs The Official Receiver of Coimbatore

Kunhi Raman, J.—These petitions arise out of execution proceedings which were started by the petitioner in the Court of the District Munsif

of Udumalpet. The petitioner had obtained a decree against one Madha Naicken and his son on the 8th July, 1935, the decree amount being Rs.

2,702-12-0. On the 21st October, 1935, he filed an execution petition for attachment of the immovable properties of the judgment-debtors. The

attachment was ordered on the 1st November, 1935. Subsequently on the 6th November, 1935, Madha Naicken, the father who was one of the

judgment-debtors filed I.P. No. 199 of 1935 in the Court of the Subordinate Judge at Coimbatore for being adjudicated insolvent. On the 1st of

September, 1936, he obtained an order of adjudication and the Official Receiver of Coimbatore was appointed interim receiver of his properties.

Thereupon the Official Receiver in his capacity as interim receiver applied to the District Munsif on the 26th March, 1936, for stay of execution

proceedings and his request was granted by the learned District Munsif, Against that order, the petitioner has filed C.R.P. No. 1381 of 1936. He

had also appealed to the District Judge of Coimbatore who has upheld the order of the District Munsif staying execution proceedings. In his

judgment the learned Judge has also upheld the contention urged on behalf of the respondent that no appeal lay, the petition of the Official Receiver

before the District Munsif being in the nature of a claim petition. Against the order of the learned Judge the petitioner has filed C.R.P. No. 947 of

1937. He has also presented C M. P. No. 3086 of 1937 to convert C.R.P. No. 947 of 1937 into a Civil Miscellaneous Appeal, should it be held

that the order of the learned Judge is appealable and that consequently no revision petition lies to the High Court. It is however not necessary to

deal with these aspects of the case since no technical objection has been taken on behalf of the respondent to anticipate which these different

petitions have been filed.

The learned Advocate for the petitioner contends that the District Munsif of Uddmalpet has refused to exercise a jurisdiction that is vested in him

in making the order against which the first Civil Revision Petition is presented. To appreciate this argument, it is necessary to refer to the reasons

given in the order of the learned District Munsif for staying execution proceedings. Subsequent to the insolvency of Madha Naicken the petitioner

was trying to bring the properties of Madha Naicken''s son to sale in executing the decree that he had obtained against both the father and the son.

His contention before the learned District Munsif was that he was entitled to proceed with the sale of the son''s share because the son has not been

adjudicated insolvent and consequently the son''s share did not vest in the Official Receiver. He also contended that even if the Official Receiver

wanted to proceed against the son''s share on the ground that the father''s right to dispose of the son''s share had become vested in him on the

insolvency of the father that argument could be successfully met by the petitioner relying on the order of attachment of the son''s share which, as

already stated, was obtained by him on the 1st of November, 1936. This attachment being prior to the insolvency of the father, the Official

Receiver''s right if any to exercise the father''s privilege of selling the son''s share for his debts has-been destroyed.

The contentions urged before the learned District Munsif on behalf of the Official Receiver were that the property that was sought to be attached

by the petitioner was the self-acquired property of the father Madha Naicken and not his joint family f property and that consequently the son of

Madha Naicken did not have any interest in it. The learned District Munsif states in his judgment that the question which he has to determine is

whether the properties are the self-acquisitions of Madha Naicken or the joint family properties of Madha Naicken and his son Ramaswami

Naicken. Following the decision in The Official Receiver, Kistna Vs. Gogineni Kodandaramayya and Another, , he has held that the proper Court

to determine this question is the Sub-Court at Coimbatore before which the insolvency proceedings took place as otherwise it might lead to

multiplicity of proceedings of a conflicting nature. He granted a stay of execution proceedings as prayed by the Official Receiver and directed the

petitioner to apply to the Sub-Court at Coimbatore u/s 4 of the Provincial Insolvency Act.

The learned Advocate for the petitioner argues that by making this order the learned District Munsif has in effect upheld the contentions of the

respondent that the properties that were sought to be attached are the self-acquisitions of Madha Naicken. He also argues that the decision quoted

above does not debar the learned District Munsif from allowing the execution proceedings to continue as against the right, title and interest of

Madha Naicken''s son in the property sought to be attached whatever those rights may be. It seems to me that these contentions are well founded.

The judgment reported in The Official Receiver, Kistna Vs. Gogineni Kodandaramayya and Another, shows that the view taken is that it is only

when the property proceeded against is the property of a person who has been adjudicated insolvent that the Court is bound to deliver it to the

receiver. This is clear from the following sentences that occur in the judgment:

Whatever has been proceeded against as the property of the person who was subsequently adjudicated insolvent has to be delivered to the

receiver.... I am of opinion that the policy of Section 51 is really to put an end, as it were, to the powers of the executing Court to proceed against

or do anything in respect of property against which it has issued execution as soon as it is found that the judgment-debtor as whose property it was

proceeded against has been adjudicated an insolvent, and an application is made by the Receiver u/s 52 of the Act.

Therefore it is only where the property is sought to be attached as the property of the judgment-debtor who has been adjudicated insolvent that

these observations can apply. In the present case the petitioner wanted to continue execution proceedings against the interest of the insolvent''s son

who was also a judgment-debtor and who admittedly has not been adjudicated insolvent. The judgment in the case mentioned above shows that

there also the judgment-debtors were an insolvent father and his son and that the order that was upheld by Pandrang Row, J., was the order made

by the Subordinate Judge permitting the Official Receiver in that case to take possession only of the interest of the insolvent father in the attached

properties and allowing the decree-holders to proceed with the execution of their decrees so far as the insolvent''s son''s interest in the attached

properties was concerned. Therefore as contended by the learned Advocate for the petitioner, the proper order was not to stay execution

proceedings altogether but to direct a stay only so far as the petition related to the interests of Madha Naicken the insolvent. So far as the

proceedings related to the interest if any of Madha Naicken''s son in the attached properties they should have been permitted to be continued by

the petitioner.

The petitioner''s learned Advocate also invites my attention to the decision reported in Rm. Ar. Ar. Rm. Arunachalam Chettiar (dead) and

Others Vs. Sabaratnam Chettiar and Others, . That is a decision of a Bench of two judges of this Court. Reliance is placed on the following

sentences in the judgment:

The learned Advocate for the Official Receiver has quoted the decision of Pandrang Row, J. (sitting alone) in Baluswami Naidu v. Official

Receiver, Madura (1938) 1 M.L.J. 827. The learned Judge does appear to have formed the opinion that in the case of the insolvency of a Hindu

father Section 28(2) of the Provincial Insolvency Act does prevent the creditors of a son from attaching the son''s share in the family property

without the leave of the Insolvency Court. As I have indicated I do not share this view and as I have also indicated it is opposed to the decisions of

two Benches of this Court. Gopakkrishnayya v. Gopalan (1926) and Manicka Pillai v. Vellayya Naickenn A.A.O. No. 1939. The position is that

while the inters - of the son remains unsold or unattached, the Official Assignee has the right to sell the properties for the lawful debts of the

insolvent father, but unless he exercises his right he may lose It and, he loses it if the interest of the son is attached by a creditor of the son.

The present case seems to fall within the scope of the observations which form the basis of the decision in the case referred to.

The respondent''s learned Advocate then contends that the petitioner has a remedy open to him, namely, to go before the Court in which the

insolvency proceedings of Madha Naicken are pending and ask for suitable relief and that therefore he must not be permitted to resort to a Civil

Revision Petition in which the granting of the relief asked for is discretionary. I am not able to accept this contention as well founded. When it is

clear that the Court below has refused to exercise a jurisdiction that is vested in it, that is a typical case in which the High Court will interfere in

revision. The petitioner had attached the interests of the insolvent Madha Naicken and his son prior to Madha Naicken''s insolvency and his

execution proceedings before the learned District Munsif were only in respect of the son''s share in the attached properties and therefore even

according to the decision reported in The Official Receiver, Kistna Vs. Gogineni Kodandaramayya and Another, , the learned District Munsif had

jurisdiction to direct the execution proceedings to continue against the right, title and interest, if any, of Madha Naicken''s son in the attached

properties. The refusal of the learned District Munsif to make such an order cannot be supported. I therefore allow the Civil Revision Petitions and

order that the stay granted by the learned District Munsif so far as it relates to proceedings in execution as against the right, title and interest of the

insolvent Madha Naicken''s son be cancelled and that the petitioner be permitted to continue his execution proceedings against such interest

whatever that may be, in the Court of the learned District Munsif. The petitioner is entitled to his costs and I allow one set of costs in the three

applications payable out of the estate.