PULLA SUBBARAMIAH Vs. PALAGARI BALARAMI REDDY AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the second defendant in O.S. No. 72 of 1929 on the file of the Court of the Subordinate Judge of Nellore, against the order in E.P. No. 98 of 1943. The decree was a money decree against the appellant and two others who were defendants 1 and 3 in the suit. The appellant was adjudged an insolvent on 12th April, 1933, in I.P. No. 82 of 1932, on the file of the District Court of Nellore. The adjudication was annulled on the 8th July, 1937, but the properties were vested in the Official Receiver, Nellore, by an order under Section 37 of the Provincial Insolvency Act. The execution petition out of which this appeal has arisen was first filed against the three defendants. The Official Receiver was subsequently added as the fourth respondent. The prayer in the execution petition so far as the appellant was concerned was two -fold. One was that certain

(2.) THE question, however, on which there was considerable discussion before us was as to whether the appellant can maintain the appeal in respect of the order directing execution to issue against the property. Respondent's counsel relied upon the decision in Sakhawat Ali v. Radha Mohan, I.L.R. (1918) All. 243, Hari Rao v. : (1926)50MLJ358 and Venkataramanayya v. Bangarayya, (1934) 67 M.L.J. 942. The first of these arose under the Provincial Insolvency Act of 1907. In the course of certain proceedings in insolvency before a District Judge the insolvent filed an application in Court complaining of a sale of property which had been held by the Receiver and urging that it should hot be confirmed. The objection having been disallowed and the sale confirmed, the insolvent appealed to the High Court. It was held that he was not a " person aggrieved " within the meaning of Section 22 or Section 46 of the Provincial Insol -vency Act of 1907 and could not therefore maintain either the application or the appeal. It was observed that he could not be aggrieved in the legal sense of the word by the sale of property in which he had no interest. The leading English cases of Ex parte Sheffield4, and In re Leadbitter5, were referred to, and it was pointed out that the possibility of a surplus being left for the insolvent after distribution, does not clothe him with any legal interest and that he has merely a hope or expectation. It may incidentally be noted that Sections 68 and 75 of the Provincial Insolvency Act of 1920, corresponding to Sections 22 and 46 of the Provincial Insolvency Act of 1907, have expressly named the insolvent among the persons who have the right to make an application under the former section and the right to file an appeal under the latter.

(3.) IN Venkataramayya v. Bangarayya, (1934) 67 M.L.J. 942, it was held under the Provincial Insolvency Act of 1920, that,