N MUTHUSAMI CHETTIAR Vs. PERIYAL ACHI

JUDGEMENT

(1.) The petitioner was the first defendant in a suit for recovery of money collected by the first defendant as a result of a decree which is alleged to be the property of the plaintiff's husband. The facts are rather peculiar. The decree in question was transferred from a third party to the name of the first defendant and it is alleged that the real owner was the plaintiff's husband who is now dead. The plaintiff's husband was adjudged an insolvent in 1930. He died in June, 1934, at or about the time when the first defendant effected a sale of the properties acquired in execution of the decree in question. It would appear that at the time of his death the plaintiff's husband had failed to carry out the Court's orders in prosecution of his insolvency and had not applied for a discharge. It would also appear that the debts due to creditors in the insolvency were the subject of an extra judicial composition. In June, 1937, the plaintiff, widow of the deceased insolvent sued the first defendant for the sale proceeds of the property, acquired under the decree which she asserts forms part of her husband's estate. She impleaded in her suit the Official Receiver and alleged that the Official Receiver had taken no action to get possession of this money for the estate. At the time when she filed this suit, she was taking steps for the annulment of the adjudication of her husband but she does not in her plaint specifically pray that the money claimed in the suit should be made payable to the Official Receiver. She claims it for herself, possibly anticipating that the annulment of the adjudication would intervene before the suit was decreed. The adjudication was eventually annulled in an appellate order of the District Judge. At the time of the annulment the suit was barred as regards one item but was still within time as regards the other item. The learned District Judge annulled the adjudication knowing of the extra judicial composition since, having regard to the death of the insolvent and all the circumstances, he thought it unnecessary to endeavour to undo this composition.

(2.) A preliminary issue was framed in the suit on the question whether the suit was maintainable when the plaintiff's husband's estate had vested in the Official Receiver. Ordinarily this Court will not entertain revision petitions against decisions on issues which are not decisions of the whole suit, but in the circumstances of the present case it seems to me that the matter should be decided in revision. It essentially relates to the jurisdiction of the Court to entertain the suit and it relates to a matter which, if decided wrongly in favour of the plaintiff, may result in an elaborate trial which would otherwise be unnecessary.

(3.) The question is by no means free from difficulty. Ordinarily speaking the provisions of Section 43, Provincial Insolvency Act, regarding the annulment of an adjudication for the default of the debtor will scarcely apply to the estate of a dead man, and one would think that the proper order to pass would be one under Section 17, merely terminating the administration; the debtor being dead and no further administration being necessary in the interests of the estate. However, it does appear in this case that before the death of the insolvent there was a default from which annulment would normally result. I am not therefore prepared to say that the annulment order was improper. In any case we are not now concerned with its correctness, ft has been made and is binding.