T. KRISHNAN Vs. LEELAVATHIAMMAL

JUDGEMENT

(1.) This Memorandum of Civil Revision Petition is directed against the Order of Sale dated 15.6.2005 in Execution proceedings in E.P. No. 85 of 2003 in O.S. No. 256 of 2000 on the file of the learned District Munsif, Tiruvannamalai. The Revision Petitioner herein is the Defendant/Judgment-debtor in the Suit in O.S. No. 256 of 2000, whereas the Respondent is the Plaintiff in the Suit. The Respondent has obtained a Decree in the above said Suit in O.S. No. 256 of 2000. Pursuant to the Decree, an Execution Petition was filed in E.P. No. 85 of 2003 for the attachment of property belonging to the Revision Petitioner. The sale date was fixed on 15.6.2005 as contemplated under Order 21, Rule 66 of the Civil Procedure Code. Only on that date, the Revision Petitioner had produced the Order dated 25.11.2002 and made in Insolvency Petition in I.P. No. 13 of 2002 passed under Order 10 of Provincial Insolvency Act and submitted that in pursuant to the Order passed in Insolvency Petition in I.P. No. 13 of 2002, the property which was sought to be attached was vested with the official Receiver and therefore, the Execution proceedings had to be stayed as per Section 29 of Provincial Insolvency Act. That was rejected by the learned District Munsif, Tiruvannamalai. Being aggrieved with the above said Order, the Judgment-debtor has preferred this Revision Petition.

(2.) When the Petition came up for hearing, Mr. Margabandhu, learned Counsel for the Petitioner has submitted that Section 29 of Provincial Insolvency Act is very clear that since the Judgment-debtor had been adjudicated as an insolvent in pursuant to the Order made in I.P. No. 13 of 2002, he had nothing to do with the property which was sought to be attached and therefore, the Execution proceedings ought to have been stayed. Without understanding the proposition of law under Section 29 of Provincial Insolvency Act, the Executing Court had deliberately refused to accept the Order, which was produced on behalf of the Petitioner and proceeded to fix the Sale date on 15.6.2005 which was erroneous and therefore liable to be set aside.

(3.) On the other hand, Mr. T.R. Rajaraman, learned Counsel for the Respondent/Decree-holder has argued that the Revision Petitioner was adjudicated as an insolvent only subsequent to the Decree passed in O.S. No. 256 of 2000 and therefore, the Order passed in I.P. No. 13 of 2002 would not bind up on the Respondent. Hence, the order fixing the sale date on 15.6.2005 passed by the Executing Court need not be disturbed and interfered with. In this connection, it is imperative on the part of this Court to refer the provisions of the Sections 28 & 29, as well as Section 10 of Provincial Insolvency Act.