BALAMMAL Vs. THE OFFICIAL ASSIGNEE OF MADRAS

JUDGEMENT

(1.) IN July, 1942, the husband of the appellant was adjudged an insolvent; and before the end of the year the Official Assignee took possession of some timber on the ground that it belonged to the insolvent. In 1942 or earlier, the appellant claimed that the timber was hers; but on the 22nd February, 1943, despite her objections, the property was sold. Chandrasekhara Aiyar, J., before whom the matter came for confirmation of the sale, ordered that the sale proceeds should be held by the Official Assignee pending further orders. On the 26th March, 1943, some moveables were sold, which realised a sum of Rs. 225. On the 30th August, 1944, the Official Assignee applied for directions to distribute certain assets in his hands as belonging to the insolvent. On the 11th December, 1944, Clark, J., passed an order on these applications, He said that with regard to the houses sold it was the interest of the insolvent that had passed to the vendees, and so it was unnecessary for him to consider whether or not the houses belonged to the insolvent. With regard to the Rs. 2225 which were the proceeds of the timber and moveable property which is the subject of this appeal, the learned Judge was informed that the property had been sold absolutely and that the question as to the title to the property had still therefore to be determined. Clark, J., therefore directed by the order of that date that the Official Assignee should for the present retain in his hands that sum; and he added at the end of his order:

(2.) THE learned advocate for the appellant argues that the learned Judge was wrong in holding that the claim was barred by limitation, as the proper Article of the Limitation Act to apply was not Article 48, as the learned Judge thought, but the residuary Article 120. For the purpose of this argument Mr. Narasayya Chowdhury relies principally on Gurudas Pyne v. . In that case, a suit was filed by the owners of certain logs of timber against one Modhoosoodhun, who had misappropriated them, and another for conversion of the timber, and a decree was passed. The matter was taken in appeal to the High Court and subsequently to the Privy Council, and during the pendency of these proceedings the judgment -debtor died and the brother of the judgment -debtor thereupon sold the logs of timber which, of course, he held for the benefit of his brother's heir, the widow of the deceased judgment -debtor. In the course of execution, certain difficulties arose, and the decree -holder was unable to proceed against all the properties of the judgment -debtor. So a fresh suit had to be filed. Their Lordships had to consider whether a suit lay for the proceeds of the sale, and they held that it did; but that as it was a suit for the sale proceeds, Article 48 did not apply. They held that the brother had not converted the logs, but had sold them on behalf of the deceased judgment debtor for the benefit of the widow, and that since there had been no conversion by the brother, the suit against the brother and the widow was not a suit to which Article 48 would apply.

(3.) THE appeal is dismissed with costs.