LAXMINARAYAN SAWALRAM Vs. DWARKAPRASAD RUDMAL

JUDGEMENT

(1.) THIS appeal is directed against the order dated 20-12-1960 of the learned Single judge, Sen, J. , of this Court in Misc. Appeal No. 124 of 1958 whereby the order of the executing Court setting aside the sale of the rice mill by public auction in favour of the appellant was upheld.

(2.) BRIEFLY stated the facts giving rise to the sale of the rice mill are these. Appellant-decree-holder and the respondent-judgment-debtor No. 1 Dwarkaprasad had entered into a partnership on 27-12-1950. However, the appellant filed a suit on 18-4-1953 for dissolution of partnership and settlement of accounts. The claim was contested by Dwarkaprasad and evidence in the suit was to be recorded on 57-1955. But on that date both the parties to the suit amicably settled their disputes and in terms of their compromise a decree was passed on that date. It was one of the terms of the compromise that the partnership property be sold through a commissioner, and that out of the half share of respondent-defendant dwarkaprasad in the sale proceeds of the partnership property appellant-plaintiff Laxminarayan be paid a sum of Rs. 20,000. 00 in full satisfaction and settlement of the accounts of the partnership inter se. Thereafter on 14-7-1955 Dwarkaprasad filed a petition for being adjudged insolvent and he was accordingly so adjudged on 13-8-1958. In the mean time, the rice mill in question belonging to the partnership was sold by public auction on 28-12-1957. An objection was, therefore, raised that as the adjudication of Dwarkaprasad as an insolvent relates back to 14-7-1955 the sale of his share in the property which had vested in the receiver was illegal and liable to be set aside. The objection found favour with the executing Court and accordingly it set aside the sale. In appeal to this Court the learned Single Judge accepting the objections confirmed that order. Hence this appeal.

(3.) THE only question, therefore, that falls for determination is whether the sale of the rice mill held on 28-12-1957 was illegal or not. In our view the answer to the question is that it is not illegal but perfectly valid.