SARASWATHI Vs. KRISHNIER

JUDGEMENT

(1.) THIS civil miscellaneous appeal arises out of certain proceedings initiated by the respondent (petitioning creditor) in I. P. No. 4 of 1958 for a declaration that certain properties 'formed part of the estate of the insolvent, and that the Official receiver should be directed to take possession of the same. The petitioning creditor's case was that the insolvent had put certain properties fictitiously in the names of his wife and mother the appellants herein, that they were not genuine transactions, and that the properties put in their names still continued to form part of the insolvent's estate. The appellants resisted the same, claiming title in themselves.

(2.) THE learned Subordinate judge. , Nagarcoli. dismissed the application, but on appeal the learned District Judge modified the order of the trial court, and upheld the claim of the petitioning creditor in respect of a portion of the properties. The appellants aggrieved by that portion of the learned. District Judge's order has preferred the present appeal.

(3.) LEARNED counsel for the appellants raises; the objection that the proceedings initiated by file petitioning creditor in his own name are incompetent and misconceived, and that it was not open, to any individual creditor to initiate such proceedings. He urged that, when a person has been adjudged insolvent, his entire estate would vest in the Official Receiver, who alone would be competent to take any such proceedings. If the Official Receiver wrongfully declines to take the necessary proceeding, it will be open to any creditor, who had proved the debt in insolvency, to apply for appropriate directions from the insolvency court. He can move the insolvency court for an order directing the Official Receiver to take the requisite proceeding for recovery of the properties of 'the insolvent on condition that either he provides the costs of such proceedings or indemnifies the Official receiver in respect of such costs. He can also obtain appropriate directions from the insolvency court to initiate and prosecute such proceedings in the name of the official Receiver. Learned counsel contended that, if no such order is passed, no individual creditor has any right to move the insolvency court Under Section 4 in his own individual capacity.