CHENGAYYA Vs. M V SWAMINATHA MUDALIAR

JUDGEMENT

(1.) The question that come up for consideration in this revision is with reference to the scope and import of the expression "any other........ person aggrieved " occurring in S. 68 of the Provincial Insolvency Act (Act V of 1920), hereinafter referred to as the Act.

(2.) The question arises under the following circumstances. A concern by name Sivanandam Palayakot Co., Guidyattam, which is under voluntary liquidation, filed C. S. No. 14 of 1947 on the Original Side of this Court against A. Kaliappan, the second respondent herein, to recover a sum of Rs. 1,61,000/-, and obtained a decree. In execution of that decree, the house property of the judgment-debtor was brought to sale on several occasions, but the sale could not take place for one reason or other. Pending the above proceedings, the judgment-debtor got himself adjudged an insolvent in I. P. No. 8 of 1968 on the file of the Subordinate Judge, Vellore, obviously under S. 10 of the Act. The result was all his properties, including the house property which was sought to be sold in execution of the decree in C. S. No. 14 of 1947 came to vest in the Official Receiver, Vellore, the 3rd respondent herein. The consequence was the execution proceedings in C. S. 14 of 1947 could not be further prosecuted. In the course of administration of the estate of the insolvent, the Official Receiver, Vellore, brought the house property situated in Gudiyattam Town belonging to the insolvent to sale in public auction by virtue of the provisions of S. 59 of the Act. Several times the property was brought to sale, but the sale could not take place for some reason or other. Ultimately, the sale took place on 14-3-1973, for a price of Rs. 26,000/-, to and in favour of the petitioner in this revision. The first respondent in the revision is a shareholder of Sivanandam Palayakot Co., Gudiyattam, the decree-holder in C. S. 14 of 1947. He filed on application under S. 68 of the Act, to set aside the auction sale held by the Official Receiver on 14-3-1973, urging several grounds. The auction purchaser, viz. The petitioner herein, mainly contested the application. The application I. A. No. 30 of 1973 in I. P. 8 of 1968 was enquired into by the Additional Subordinate Judge of Vellore and by judgment and decree dated 10-1-1974, he dismissed the application negativing the pleas of the first respondent herein. There was an appeal by the first defendant C. M. A. 30 of 1974 which was heard and disposed of by the District Judge Vellore by his judgment and decree dated 6-1-1975. The appellate Court chose to reverse the findings of the first court and held that the sale held by the Official Receiver, the 3rd respondent herein, on 14-3-1973, is affected by serious illegalities, irregularities and infirmities and in that view, the appellate court set aside the sale concerned and allowed the application, I. A. No. 39 of 1973, referred to above. The auction purchaser has now preferred this revision challenging the judgment and decree of the appellate court.

(3.) Two contentions were urged before me by Mr. Padmanabhan, learned counsel appearing for the petitioner in this revision. The first contention is that the first respondent herein, the applicant in I. A. No. 39 of 1973 in I. P. 8 of 1968, on the file of the Subordinate Judge, Vellore, cannot be characterised as a 'person aggrieved; within the meaning of S. 68 of the Act. The learned counsel points out that the first respondent is a share-holder and director of a company which is under voluntary liquidation and all or whatever grievances the said company may have as a creditor of the insolvent, could be ventilated only by and through the liquidator appointed for the company and the first respondent can never come within the definition of a 'person aggrieved' under Section 68 of the Act.