KONITHALA CHINNA SUBBA NAIDU Vs. CHANDRA KUPPA NAIDU

JUDGEMENT

(1.) The order of the learned Subordinate Judge cannot be supported and has therefore to be set aside. The appellant was adjudicated insolvent in I. P. No. 9 of 1932 on 10-3-1933 and his properties of which the subject-matter of the suit formed a part, vested in the Official Receiver on 6-3-1934. The Official Receiver sold these properties to a third party on 2-5-1935 but as a result of proceedings about which it is unnecessary to discuss in the present context, that sale was set aside and the properties became revested in the Official Receiver. On 4-9- 1935 the Official Receiver wrote to the Insolvency Court requesting that the order of adjudication should be annulled because the insolvent had taken no steps to get the order of discharge. The learned Subordinate Judge made an order annulling the adjudication in the following terms on 12-9-1935.

(2.) On the first point, the learned Judge found that the petitioner was a pauper.

(3.) On the second point, the learned Judge was of opinion that the provisions of Order XXXIII, Rule 5 (d. 1) Civil P. C. should apply, namely, that the suit appeared to be barred by law. The learned Judge was of opinion that from the moment the insolvency was annulled on 12-9-1935, the possession of the properties by the Official Receiver became adverse to that of the quondam insolvent and therefore he must be deemed to be a trespasser. Such being the case, since the suit was filed only on 17-12-1948, that is more than 12 sears after the date when the possession became adverse, the suit is barred. In our view, the learned Judge is wrong. It has been held in 'Kuppusami v. Kau-sala Ramiah', AIR (6) 1919 Mad 8 at p. 10 by Wallis C. J. and Spencer J. that even in a case where the property vested in the receiver and the receiver was discharged, still the possession of the receiver would not be adverse to the persons who are really interested. The observations are as follows: