CHENGALRAYA CHETTY Vs. THE OFFICIAL RECEIVER

JUDGEMENT

(1.) THIS civil revision petition arises in the insolvency of one Fakir Sahib. The petitioner is one of the creditors of the insolvent. He tendered proof of his claim which was rejected by the Official Receiver and he thereupon applied under Section 33 of the Provincial Insolvency Act V of 1920 to the Court to accept proof of his debt. Though the Official Receiver refused to contest the. petition the learned Subordinate Judge held that the claim of the petitioner could not be proved in insolvency because it was a claim by way of contribution and therefore was not provable under Section 34 of the Insolvency Act. On appeal the learned District Judge confirmed the order of the learned Subordinate Judge. He held that the claim made for contribution cannot be said to be a liquidated claim within the meaning of Section 34 of the Provincial Insolvency Act.

(2.) THE claim is made in respect of an amount which the petitioner paid to discharge a decree in O.S. No. 464 of 1931 on the file of the Court of the District Munsiff, Tiruppattur which was passed against the petitioner, the insolvent and another. The decree was that these three persons should pay the plaintiff therein Rs. 250 on account of past mesne profits and mesne profits at the same rate from the date of the plaint till the date of delivery. The petitioner claims that though the decree ran against all the three persons it was only the insolvent who was really liable and he having paid the entire decree amount was entitled to recover the same from the insolvent. In the counter affidavit filed by the insolvent it was alleged that the application was not maintainable, that the debt was not a provable debt and that the remedy was only by way of suit.

(3.) IT was not contended before either of the Courts below that the plaintiff's claim was not sustainable on the merits.