SWARUPCHAND RAYANJI Vs. MAJETI JANAKIRAMAYYA

JUDGEMENT

(1.) These two appeals arise out of a suit for partition filed by the plaintiff against his father the first defendant and his uncle the second defendant, whose estates were on the date of the suit vested in the Official Receiver, Kistna, who was impleaded as the twenty-first defendant. The plaintiff claimed a fourth share in all the properties comprised in the plaint and incidentally prayed for a declaration that certain alienations effected by the Official Receiver, Kistna, were not binding on his : share. Defendants 3 to 20 are the various alienees but these appeals are confined to the alienations in favour of defendants 4, 11, 12 and 13, Appeal No. 427 of 1938 is by defendants 12 and 13 while Appeal No. 428 of 1938 is by defendants 4 and 11. The properties which are the subject-matter of Appeal No. 427 of 1938 are items 4 and 5 of B Schedule and items 2 and 3 of C Schedule and the properties which are the subject-matter of Appeal No. 428,of 1938 are items 8 of A Schedule and 10 of B Schedule and item 1 of C Schedule. The various dates of sale to the said defendants are as follows: The second defendant was adjudicated insolvent on 12 September, 1931, and the first defendant on 11 January, 1932. The first defendant and the father of the second defendant are the sons of one Janamsetty and they were on the date of. the insolvency of the second defendant admittedly members of an undivided Hindu family and upto the date of suit no division took place between the first defendant and his son the plaintiff and the second defendant or between the first defendant and the plaintiff. It is not disputed that the plaintiff is entitled to a fourth- share but his claim is resisted on the ground that the said properties constitute the self-acquired property of defendants 1 and 2, and the plaintiff has no title thereto and assuming they are joint family properties, they were validly sold by the Official Receiver in pursuance of the power to sell the share of the plaintiff for the debts of the 1st defendant. The plaintiff's case is that so far as the question of self- acquisition is concerned, it was concluded in his favour by reason of the orders on two claim petitions filed by the Official Receiver in the course of the execution of the decree in O.S. No. 28 of 1931, which was obtained by the 16 defendant against the plaintiff and defendants 1 and 2 and that in any event the properties which were sold were the subject-matter of attachment in the said suit long before the first defendant was adjudicated insolvent and the power of the first defendant to sell the plaintiff's share in the joint family property did not vest in the Official Receiver. It is admitted that the properties were attached before judgment on 18 March, 1931, and they were again attached : after the decree on 29 February, 1932. Subsequent to the decree in April, 1932, the Official Receiver put in a claim petition stating that all the properties that were attached were the self-acquired properties of defendants 1 and 2 and the plaintiff had no share therein (Ex. G). That petition was dismissed on 26 April, 1932 on the ground of unnecessary delay. There was an appeal preferred to the High Court and it was dismissed on 18 September, 1932, on the ground that the appeal was incompetent and the remedy of the Official Receiver was to file a suit under Order 21, Rule 63. (Vide Official Receiver, Kistna V/s. Imperial Bank of India (1934) 68 M.L.J. 78 : I.L.R. 58 Mad. 403). It is unnecessary to deal with the correctness of this decision as both the Official Receiver and the 16 defendant would be governed by it. While the appeal was pending in the High Court, the Official Receiver preferred another claim petition on 4 August, 1932, which was also dismissed on the ground of delay. Admittedly no suit was filed within one year from the date of either of the orders on the claim petitions. The learned Judge in the Court below has taken the view that it would not be open to the defendants to contend that the plaintiff has no right in the suit properties. By reason of this view he did not go into the question of fact as to whether the properties were self-acquired or not. On the footing that the property was the joint family property, the learned Judge negatived the defence of the defendants on the ground that inasmuch as the sale by the Official Receiver in favour of the various defendants was subsequent to the attachment he was not competent to sell the plaintiff's share in the suit property.

(2.) In these appeals Mr. Satyanarayana Rao on behalf of the appellants canvasses the soundness of the view taken by the lower Court on both the points. His contention is that the orders on the claim petitions cannot bar the Official Receiver and therefore the alienees who claim under him. His next contention is that though it is true that the pendency of an attachment of the joint family property would prevent the Official Receiver from selling the son's share, it would not prevent the vesting of the right of the first defendant to sell the plaintiff's share on the ground that the attachment only prohibits alienation so as not to defeat claims under that attachment.

(3.) Taking the first contention it seems to me that it is well founded. Whether a judgment-debtor is a party to an order on a claim petition so that he could be rendered bound thereby is a question of fact in each case. In this case, no doubt from the cause title in the claim petition it would appear that the Official Receiver made not only the decree-holder a party but also the plaintiff and defendants 1 and 2 party respondents 2 to 4. But from the order on the claim petitions it would appear that no notice was served on respondents 2 to 4, and the decree-holder alone was served and that the dismissal was on the ground of delay. Though the plaintiff was intended to be made a party to the petition, no notice having been served on, him at the time when the order was made, he could not be considered to be a party to the order on the claim petition. This was the view taken in Gruruva V/s. Subbarayudu (1890) I.L.R. 13 Mad. 366, where the learned Judges remarked as follows: A judgment-debtor may be the party against whom an order upon a claim in execution proceeding is made so as to be bound by the special rule of limitation prescribed for suits by such a party. Whether he is such a party or not must depend upon the facts of each ease. It is obvious that in some cases he could not be the "party against whom an order on a clam,, is made, for the order may fee made without notice to him. This view in Guruva V/s. Subbarayudu (1890) I.L.R. 13 Mad. 366, has been followed in Muhuswami Mudaty V/s. Ayyalu Bathadu (1902) 13 M.L.J. 367, (c.f." Appanna V/s. Appanna (1914) 1 L.W. 772). The orders on the claim petitions do not therefore preclude the Official Receiver from raising the question of self-acquisition against the plaintiff.