CHANDRA NAGESWARAN Vs. T R BALAKRISHNAN

JUDGEMENT

(1.) The concurrent findings of the Courts below are wholly unsustainable. The first respondent herein was adjudged insolvent and the Official Receiver brought his property to sale. As regards the subject matter of present dispute, the appellant purchased the same in the sale held on 12-1-1977. The first respondent filed a petition u/S. 68(1) of the Provincial Insolvency Act to set aside the sale. In the petition three grounds were urged. The first was that there was no proper notice of sale issued to all the 170 creditors. The second objection was that the sale was adjourned from 17-12-1976 to 12-1-1977 and the Official Receiver had no jurisdiction to adjourn a sale in the midst of the holding of the sale. Thirdly it was contended that the mortgage over the property was not disclosed in the proclamation for sale and therefore the sale was invalid.

(2.) When the matter was heard by the Subordinate Judge, Salem, no material was placed before him in support of the above three contentions. But a fourth objection was raised in the arguments that the first respondent had only a life interest in the property, which could not be sold by the Official Receiver. It was argued that under S. 28(5) of the Provincial Insolvency Act, a property of an insolvent, which was exempt from attachment under the Code of Civil Procedure could not vest in the Official Receiver and he could not take any proceedings against the same. That objection was upheld by the Subordinate Judge purporting to follow a judgment of this Court in Chenchulakshmi Ammal v. Subramanian (1972) 1 Mad LJ 206 : 85 Mad LW 903. The Subordinate Judge held that the first respondent had only a life interest in the properties and the sale was not valid. Consequently, he set aside the sale.

(3.) On appeal by the appellant herein, the I Additional District Judge, Salem, confirmed the order of the Subordinate Judge placing reliance on the same judgment of this Court. The aggrieved auction-purchaser has preferred this Civil Miscellaneous Second Appeal.