MOONRUMUGAMKONDAN ASARI Vs. CHOCKALINGAM ASARI

JUDGEMENT

(1.) The question referred to us for decision is-- Is it open to an undischarged insolvent to maintain a suit regarding his after-acquired properties subject to the right of the Official Receiver to intervene in such proceedings?

(2.) In our view, upon the facts of this case this question does not arise and we are not disposed to enter into any further discussion of this question which is purely one of academic interest.

(3.) The facts of the case may be quite shortly stated. The insolvent was the plaintiff in the District Munsif's Court. He was also an undischarged insolvent. His case as set out in the plaint was that he got emeralds from one Sita Lakshmi Ammal for sale and that he gave them to the defendant in the suit for sale. The value of the emeralds was fixed, so he alleges, at Rs. 1,000 and it was agreed that the excess realised by the defendant by the sale should be shared equally between the plaintiff and the defendant. He sued to recover the emeralds or Rs. 1,000 the price of the emeralds and for Rs, 250 being his share, as he alleged, of the profits made by the defendant on the allegation that the defendant sold the emeralds for Rs. 1,500 and he asked for the return of the emeralds in case they were not sold by the defendant. Amongst other contentions the defendant raised the plea that: the plaintiff was an undischarged insolvent and was consequently not entitled to sue. An issue was taken upon that contention and the District Mun-sif found that the plaintiff was an undischarged insolvent, but that he could maintain the suit for recovery of the articles bailed. I wish to draw particular attention to the fact that the articles were described by the District Munsif as articles bailed. Then there was an appeal and the first Appellate Court fixed the value of the emeralds at Rs. 800 and gave the plaintiff a decree for that amount only. The case came up on second appeal to this Court and the question of the maintainability of a suit by an insolvent with reference to after-acquired property was raised and in view of the fact that a Letters Patent Appeal raising this very point was then pending decision by a Full Bench, our learned brother Anantakrishna Aiyar, J., adjourned the case until the Opinion of the Full Bench was delivered. The Letters Patent Appeal, however, abated and the matter again came before our learned brother who, in view of what appears to be a difference of view in a case decided by Krishnan and Odgers, JJ., in Ramanatha Aiyar V/s. Nagendra Aiyar and a later decision of the Privy Council in Kala Chand Banerjee V/s. Jagannath Marwari (1927) L.R. 54 LA. 190: I.L.R. 54 C. 595: 52 M.L.J. 734 (P.C.) referred the case to us.