(MARUDUGULA) SUBBARAYUDU Vs. PANDIVI SATYANANDAM

JUDGEMENT

(1.) The plaintiff who is the petitioner in this Civil Revision Petition filed a suit under Section 9, Specific Relief Act, for possession of a certain part of a house on the ground that he has been forcibly dispossessed by the Official Receiver. The Court dismissed the suit holding that he had not been dispossessed otherwise than in due course of law and against this he has filed this revision petition. One Marudugula Subbarayudu had two sons Venkatasubbayya and Venkataratnam. They were both adjudicated insolvents. The wife of the former is defendant 8 and the wife of the latter is defendant 9. Venkatasubbayya had two sons, the plaintiff and one Appala Raju, whose son is defendant 7. Venkataratnam's son is defendant 6. All these formed a joint Hindu family. The Official Receiver sold the properties in dispute and some other properties to the respondents who were defendants 1 to 5 an the suit. The sale was in 1926. It was obstructed by certain persons including a son-in-law, 3 obstructor, who filed a petition under Section 68, Provincial Insolvency Act. This was dismissed and the appeal against it also to the High Court in C.M.A. 108 of 1927 was dismissed on 4 March 1931. There had been a sale of the house by the insolvents in favour of a son-in-law and afterwards a resale of the property in favour of the third obstructor, the nephew and son-in-law of the insolvents. The Official Receiver applied to the Court to have the sale set aside and this was done by the District Judge which was confirmed in appeal by the High Court reported in Venkataratnam v. Official Receiver, Godavari District AIR 1924 Mad 858. As there was obstruction to delivery both the Official Receiver and the vendees moved the Court to have the obstruction removed and by an order of Court on 17 February 1928 this was done. The plaintiff, a son of one of the insolvents who apparently raised no objections at that time, subsequently filed this O.S. No. 253 of 1928 under Section 9, Specific Relief Act.

(2.) The question at issue really is whether the order on the obstruction petition directing removal of the obstruction was a decree or not. For the petitioner Narasimhayya v. Veeraraghavalu AIR 1918 Mad 702 is relied on. But the decision of that case is not really applicable because at that time Section 4, Provincial Insolvency Act, was not in force. This has been pointed out in Ramaswami Chettiar V/s. Ramaswami Iyengar AIR 1922 Mad 147, which is entirely in respondents favour. It was held in that case that under Secs.4, 5 and 56, Provincial Insolvency Act, 5 of 1920, the Court of insolvency can inquire into the disputed title and order delivery of the insolvent's property to a purchaser thereof from the Official Receiver by removing the obstruction of a third party. This was also the case of a father and sons. But the petitioner relies on a later case, Venkata Raman V/s. Chokkier AIR 1928 Mad 531 and he argues that the sons are in a better position than a third party claiming to hold under the insolvent in this matter. Venkata Raman V/s. Chokkier AIR 1928 Mad 531 professes to distinguish Ramaswami Chettiar V/s. Ramaswami Iyengar AIR 1922 Mad 147 on the ground that in that case the purchase was benami, but if Ramaswami Chettiar V/s. Ramaswami Iyengar AIR 1922 Mad 147 is studied, it will be seen that though the insolvent's son raised the plea that the purchase was benami that was not the plea on which the case was decided and it proceeded entirely on the position of an undivided son. Venkata Raman V/s. Chokkier AIR 1928 Mad 531 does appear to reverse Ramaswami Chettiar V/s. Ramaswami Iyengar AIR 1922 Mad 147 though it does not profess to do so.

(3.) It has been argued for the counter-petitioner before me that the two cases, Official Receiver of South Arcot V/s. Perumal Pillai AIR 1924 Mad 387 and Chittammal V/s. Ponnusami Naicker AIR 1926 Mad 363, referred to in Venkata Raman V/s. Chokkier AIR 1928 Mad 531, as placing the position of the sons on a different footing from that of the father do not really do so. It is not for me sitting as a single Judge to canvass that point. In Official Receiver of South Arcot V/s. Perumal Pillai AIR 1924 Mad 387 it was admitted that the insolvents had no present right to joint possession of the properties with the persons obstructed. In Chittammal v. Ponnusami Naicker AIR 1926 Mad 363 there had been a previous division of the property. Several cases as to what is meant by "dispossession in due course of law" have been quoted to me, but the position of the Official (Receiver with regard to an insolvent father and his sons is so peculiar and difficult that these cases are not of very much assistance. Rudrappa v. Narasingarao (1905) 29 Bom. 213 quoted for the petitioners is a case of a landlord dispossessing tenants who held over. It was held to be not in the usual process of law. On the other hand Kamini Sundari Dasaya V/s. Saheb Sheikh (1910) 5 IC 793 is a case where the tenants were dispossessed in execution of a decree against their landlord and it was held that they were not dispossessed otherwise than in due course of law. Roshanulla V/s. Nazir Mahmud (1913) 18 IC 727 is a very brief judgment which gives no reasons and it does not refer to Kamini Sundari Dasaya V/s. Saheb Shiek (1910) 5 IC 793.