N VAITHILINGAM CHETTIAR Vs. S N LAKSHMANA NADAR

JUDGEMENT

(1.) THIS appeal has been filed against the judgment of Kunhamed Kutti J. on the strength of certificate issued under Cl. 15 Letters Patent. The appeal arises out of a suit instituted to set aside a summary order in proceedings relating to the delivery of possession of property sold by an Official Receiver. The property in question is a house in Nagapattinam. It was purchased in the year 1910 by muthukumaraswami Chettiar, who died 8 years later, leaving behind him two sons, vaidyalinga, the appellant, and Ramalinga. The former was employed in the railways and his duties compelled him to lie in different places. His brother ramalinga, who was a stamp-vendor, was in actual occupation of the house. In the year 1948 he was adjudicated an insolvent on his own petition. The Official receiver of East Tanjore conveyed on 12-12-1952 the right title and interest for the insolvent in the house of the respondent. It appears that even earlier the official Receiver had taken possession of the entire house. The purchaser has therefore no difficulty in obtaining an attainment from the tenants. Vaidyalinga coming to know of this, applied to the Insolvency court under Or. XXI rule 100 C. P. Code for re-delivery of the property to him but his application was dismissed. He then instituted the present action; purporting to do so under Order xxi Rule 103 C. P. Code, to set aside the summary order, or, in the alternative, for partition and separate possession of his half share in the house Both the trial court as well as the court of appeal accepted his case, for partition holding that what the respondent secured under this sale by the Official Receiver was only a half share which the insolvent possessed. A decree for partition and separate possession of a half share in the houses was granted in favour of the appellant. On second appeal by the respondent. Kunhamed Kutti J. set aside that decree on the ground that inasmuch as the order of the insolvency court on the re-delivery application filed by the appellant had become final, there having been no appeal as provided for in S. 75 of the Provincial Insolvency Act (hereinafter referred to as the act), the present suit should be held to be barred by res judicata.

(2.) BEFORE proceeding consider the correctness of that view, we may point out that what the appellant sought and what was negative in the application for redelivery was possession of the entire house. We do not see how, even assuming that here was a final adjudication against the appellant of his right to possession of the entire house, his claim for partition and separate possession of a half share therein could beheld tot be barred by res judicata. It is, however, unnecessary to pursue that point, as we are not prepared to share the view taken by the learned Judge as to the effect of the order of the Insolvency Court on the application for redelivery of possession.

(3.) IN Sinna Subba Goundan v. Rangai Goundan, 1945-2 Mad LJ 384 : (AIR 1946 mad 141) Chandrasekhara Aiyar J. held that in a case where the Insolvency Court gave a final decision n a question of title, a mere direction by that court superadded tot hat decision that another proceeding could be taken for finally adjudicating the title, would not make the adjudication any-the-less binding on the parties. Kunhamed Kutti J. has relied on this decision to support his view that the dismissal of the appellant's application for redelivery by the insolvency court would have the effect of finally negating his right to the suit property. Let us first look into the facts of that case. On the insolvency of a Hindu father, his properties were sold by the Official Receiver. The purchaser was obstructed by the sons of he insolvent when he went to take delivery of possession of the properties. The insolvency Court ordered the removal of the obstruction after deciding that the property sold constituted, the self-acquired property of the father and that the sons had no right thereto. The order, though it was purported to be made on an application under S. 5 of the Act, was however taken up in appeal. There the conclusion of the first Court was affirmed. Appellate Judge, however, added a rider