R. RATHNAM Vs. R. KULANDAIVELU

JUDGEMENT

(1.) The plaintiff in O.S. No. 662 of 1976 on the file of the Additional District Munsif of Sankari at Salem, is the petitioner in this revision. The respondent herein is the defendant in the said suit. The plaintiff laid the suit for a permanent injunction restraining the defendant from preventing the plaintiff from taking water through the electric motor installed in the suit well in R.S. No. 48/2. Pending the suit, the plaintiff filed I.A. No. 1733 of 1976 under Order 39, Rules 1 and 2 of the Code of Civil Procedure, for grant of a temporary injunction restraining the defendant from preventing the plaintiff from taking water through the electric motor installed in the suit well. The suit as well as the petition have been contested by the defendant. The first Court considered the contentions of the parties and found on merits of justification for passing an order enabling the plaintiff to draw water from the suit well through the electric motor installed in the suit well by turns in alternative days and further directing the plaintiff to take his turn on the date of the order and the defendant on the next day. The defendant appealed as against the orders in I.A. No. 1733 of 1976 and the appeal, C.M.A. No. 11 of 1977 came to be heard and disposed of by the learned District Judge of Salem on 28th October, 1978. The learned District Judge chose to reverse the decision of the first Court and dismissed the petition, thereby negativing the plaintiff's plea for grant of a temporary injunction pending the suit. The present revision is directed against the orders of the District Judge.

(2.) At the time when this revision was taken up for hearing, learned Counsel for the respondent took a preliminary objection that the revision is incompetent on the ground that adjudication of the plaintiff as an insolvent has intervened after the orders of the first Court and the plaintiff who is the petitioner herein and who is an undischarged insolvent, is incompetent to prefer the revision and prosecute it. Learned counsel for the petitioner herein is not disputing the factual position that after the orders were passed by the first Court, the plaintiff/petitioner herein has been adjudged an insolvent and in the appeal by the defendant before the District Judge, the Official Receiver, Salem, was made a party respondent and there has been no order of discharge or annulment in the insolvency proceedings till date. To consider this preliminary objection, it would be pertinent to refer to the relevant provisions of the Provincial Insolvency Act V of 1920, hereinafter referred to as the Act. Ss. 28 and 28 -A read as follows:

(3.) With regard to acquisition of property after an order of adjudication, within the meaning of Sec. 28(4) of the Act, the same principle has been held to be applicable (Vide Satyanarayanamurthy v/s. : AIR1941Mad713 and Sumitra v/s. Lakshminarayana Rao, (1976) 2 A.P.L.J. 119 : : A.I.R. 1977 A.P. 83.