OFFICIAL RECEIVER Vs. AMARA SESHAYYA

JUDGEMENT

(1.) This appeal and this revision petition are brought against the order passed by the learned Subordinate Judge of Guntur in E.P. No. 84 of 1937 in O.S. No. 34 of 1931. The E.P. Was dated 1 March, 1937. The suit had been decreed on the 14th December, 1931, against ninth defendant for a sum of Rs. 23,741-1-2 with interest and costs. It was alleged in the E.P. that certain sums had been recovered in execution in 1936 and 1937 and that an amount of Rs. 30,582 plus further interest and costs was still due. The prayer in the E.P. was for execution against five defendants impleaded in the E.P. as supplemental defendants 10 to 14. The supplemental tenth defendant is the Official Receiver of Guntur and defendants 11 to 14 are said to be the minor undivided sons of K. Venkatasubba Rao the eighth defendant in the suit. K. Venkatasubba Rao had been adjudicated insolvent in I.P. No. 74 of 1931 and certain items of the joint family property had been sold by the Official Receiver for a sum of Rs. 6,555. The decree-holder alleged that he had attached the properties of the eighth" defendant before judgment in O.S. No. 34 of 1931. He said that he desired attachment by means of a prohibitory order of a sum of Rs. 5,244 representing the 4/5 share of the supplemental defendants 11 to 14 (the minor sons of the eighth defendant) of the sum of Rs. 6,555. He prayed that the Official Receiver, the tenth defendant might be ordered to deposit this amount in Court so that it might be paid to him to the credit of this decree in O.S. No. 34. He prayed also for the issue of a sale notice regarding the remaining joint family properties which had been attached and for payment of 4/5 of the sale proceeds of such items to him. The Official Receiver opposed this application and the minor sons also opposed it. The learned Subordinate Judge overruled these objections and ordered that the preliminary attachment of the sum of Rs. 5,244 should be made absolute. Hence this appeal and the revision petition which are filed by the Official Receiver.

(2.) Mr. Govindarajachari on behalf of the respondent decree-holder raised a preliminary objection to the maintainability ability of the appeal and after hearing his arguments and the arguments of Mr. P. Satyaharayana Rao for the appellant we find ourselves obliged to accept the preliminary objection. Mr. Govindarajachari's contention was that the Official Receiver did not in this proceeding represent any of the parties to the decree and that consequently no appeal would lie from the order passed by the learned Subordinate Judge. Mr. Satyanarayana Rao attempted to show that the Official Receiver could be considered to be a representative of the sons of the insolvent eighth defendant. It has been pointed out by Rankin, C.J., in the case Mohitosh Dutta V/s. Rai Satish Chandra Chaudhuri Bahadur (1931) 35 C.W.N. 971, that no hard and fast rule can be Laid down regarding the position of the Receiver in insolvency in such a case as this. The learned Chief Justice observes: It appears to me that any general statement to the effect that a Receiver is or is not a representative for the purposes of Section 47 of the Code is necessarily misleading. It all depends on the purpose and nature of the application made by the Receiver whether he is a representative of the judgment-debtor or not. For some purposes he would be entitled as representing the judgment-debtor to litigate matters under Section 47 of the Code; but where he comes to the executing Court for the purpose of saying that as the judgment-debtor's property now belongs to the Receiver the Court cannot sell for the judgment-debtor's debt that which is the property of. another person because it has vested in the Receiver for the benefit of the creditors, then, for that purpose the Receiver is not, in my judgment, a representative of the judgment-debtor. The Receiver in such a case, if he is not acting under Section 52 of the Provincial Insolvency Act but acting under the usual provisions of the Civil Procedure Code, is really a third party making a claim.

(3.) To the same effect is the decision of a Bench of this Court in Official Receiver of Kistna V/s. Imperial Bank of India (1934) 68 M.L.J. 78 : I.L.R. 58 Mad. 403. The facts of each case have to be taken into consideration in order to find out whether the Official Receiver is a representative of the judgment-debtor or not. In the present case the Official Receiver contended that all the property of the insolvent had vested in him with effect from the date of the insolvency petition. He was therefore in the position of a third party objecting to attachment under Order 21, Rule 58 of the Civil P. C. and when his objection was disallowed by the learned Subordinate Judge he had no right of appeal but had the right of filing a suit under Order 21, Rule 63 of the Civil P. C..