KATRAGADDA SREERAMAMMA Vs. OFFICIAL RECEIVER GUNTUR

JUDGEMENT

(1.) This is an appeal against the Order of remand passed by the Additional Subordinate Judge of Tenali. An objection was raised in the Lower Appellate Court that a leave of the Insolvency Court was not obtained under S. (2) of the Provincial Insolvency Act, the suit was not maintainable. The Appellate Judge permitted the objection to be taken even though it was not raised in the trial court and remanded the case, to give an opportunity to the plaintiff -appellant herein to meet that objection.

(2.) The main argument addressed by Sri B. Punyakoti Chetty, the learned Advocate for the appellant is that, as objection was not taken in the trial court, the objection must be deemed to have been waived, as held by Bardswell J. in -- Satyamma v. Official Receiver, Masulipatam, AIR 1933 Mad 917 (A). Section 28 (2), Provincial insolvency Act is in the following terms :

(3.) The learned Advocate for the appellant next drew my attention to the decision in -- Subramanyam v. Narasimham, AIR 1929 Mad 323 (B) in support of the proposition that the absence of leave under S. 16, Provincial Insolvency Act (Act 3 of 1907) corresponding to S. 28 of the present Act does not render the decree passed a nullity. But in -- Dawood Mohideen Rowther v. Sahabdeen Sahib, AIR 1937 Mad 667 (C) a Bench of the Madras High Court dissented from the decision in Subramanyam v. Narasimham (B) and held that on a proper contruction of Ss. 28 and 29, Provincial Insolvency Act, the suit is not maintainable unless leave of the Insolvency Court is obtained prior to is institution.