GOURI AMMA Vs. YOHANNAN

JUDGEMENT

(1.) This is a plaintiffs second appeal against the decision of the District Judge of Mavelikara reversing that of the Munsiff of the same place who decreed his suit for redemption of a mortgage.

(2.) The facts are short. Pending execution of a decree for money the judgment debtor was declared insolvent, and the Official receiver of the court was appointed receiver of his properties. Nevertheless, execution of the decree proceeded without obtaining the sanction of the insolvency court and without bringing the receiver on record. The properties sought to be redeemed were attached, sold in court auction subject to a possessory mortgage, purchased by the decree holder, and satisfaction of the decree was entered protanto. The plaintiff is an assignee of the rights of the purchaser and seeks redemption of the mortgage from the defendant as transferee thereof. The insolvent defaulted to apply for his discharge as ordered by court and the adjudication was therefore annulled. There was no order vesting the property in any person for purposes of administration and discharge of the debts of the insolvent.

(3.) The contention urged by the default-mortgagee was that the auction sale on which the plaintiff depended as his title was void and therefore the plaintiff had no right to redeem. This plea was repelled by the Munsiff, but found favour with the District Judge on appeal. The only question in this second appeal is whether the auction sale of the property in execution of the decree against the insolvent without the leave of the insolvency court and without impleading the receiver to represent the estate is valid, the order of adjudication which then existed having been annulled afterwards without ordering the vesting of the property in any person.