PULIPATI ANJANEYULU Vs. POLEPALLI SUBBAIAH

JUDGEMENT

(1.) The petitioner filed O.S.No.238 of 2000 in the Court of Principal Junior Civil Judge, Markapur, against the respondents for recovery of certain amount. The 1st respondent is the father and respondents 2,3, and 4 are his sons. The suit was decreed and an item of immovable property viz., a house at Markapur was attached. Steps were initiated for sale of the property, by filing E.P.No.2 of 2010. The 1st respondent raised an objection in the E.P., stating that he filed I.P.No.1 of 2009 in the Court of Senior Civil Judge, Darsi to declare him as an insolvent and though the I.P. was dismissed by the trial Court, A.S.No.52 of 2009 filed in the Court of VI Additional District Judge (Fast Track Court), Markapur was allowed, through order dated 17.08.2009. Placing reliance upon Sub- Section (2) of Section 28 of the Provincial Insolvency Act, 1920 (for short 'the Act') it was urged that all the properties of a person declared as insolvent have to be handed over to the official liquidator and if so advised, the petitioner has to seek enforcement of the decree, in accordance with the provisions of the Act. The Executing Court sustained the objection, raised the attachment and dismissed the E.P. by recording a finding that the respondents do not have any saleable interest in the schedule property. Hence, this revision.

(2.) Sri Narasimha Rao Davuluri, learned counsel for the petitioner submits that the very representation made by the 1st respondent that he filed an I.P. is incorrect and the said I.P. was filed by a creditor in respect of a small amount of Rs.25,000/-. He submits that one item of property was shown in the schedule in the I.P. and the house, which is mentioned in the E.P. herein, was not included at all. He further submits that the arrangement contemplated under Sub- Section (2) of Section 28 of the Act ensues, only where a debtor himself files the I.P. and gets himself declared as an insolvent and not where one creditor files an I.P. and only one item of the property held by the person declared as insolvent is brought under the purview of those proceedings. Alternatively, he submits that even if there was any impediment, to proceed against the 1st respondent, the E.P. could have been continued vis--vis respondents 2 to 4 who too figured as judgment debtors 2 to 4. He relied upon certain decided cases.

(3.) Sri Meherchand Noori, learned counsel for the respondents submits that the Act does not differentiate between the proceedings instituted by a creditor and a debtor and the consequences provided for under Section 28 are common to any proceedings instituted under the Act. He further submits that a factual mistake as to the nature of the insolvency proceedings was rectified by filing a memo. Another submission of the learned counsel is that respondents 2 to 4 do not have any independent stand vis--vis the properties of the joint family.