RAMASWAMI NAYAKAR Vs. VENKATASAMI NAICKER

JUDGEMENT

(1.) The Subordinate Judge of Tuttcorin dismissed an application by the Official Receiver of Tinnevelly to set aside an alienation under Section 53 and 54 of the Provincial Insolvency Act. In appeal the District Judge of Tinnevelly reversed the decision of the Subordinate Judge and declared the alienation void as against the Official Receiver under both Secs.53 and 51 of the Act.

(2.) No Second Appeal lies in such a case (vide Alagirisubba Naik V/s. Official Receiver of Tinnevelly 132 Ind Cas 641 : 61 MLJ 820 : Ind. Rul. (1931) Mad. 673 : 31 LW 105 : AIR 1931 Mad. 745 : 54 M 989 and therefore the C.M.S.A. No. 60 of 1929 must be dismissed.

(3.) Criminal Revision Petition No. 591 of 1929 is said to be based upon the same grounds as C.M.S.A. No. 60 of 1929 though it is obvious that the considerations which arise in revision are not the same as those which arise in a second appeal. In revision under Section 75 of the Provincial Insolvency Act it is only necessary to ascertain whether the decision of the learned District Judge is in accordance with law. As to this it can be said at once that considered simply as a technical matter, the order of the learned District Judge is Btrictly according to law. The alienation attacked is a simple mortgage executed on June 29, 1923 by certain persons who were adjudicated insolvents on a creditor's petition presented on September 6, 1923, the mortgage was in favour of three persons to whom the insolvents are heavily indebted. The learned District Judge has recorded findings that the mortgage was not fully supported by consideration, and that the alienees did not act in good faith when they took the transfer. He has also found that the insolvents in executing the mortgage acted with a view to prefer the mortgagees over their other creditors. On these findings the mortgage is voidable tinder both the sections, 53 and 51 of the Provincial Insolvency Act and the order of the learned District Judge is the only order which according to law he could pass.