PONNUTHAYE AMMAL Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) This is an appeal by the plaintiff (decree-holder) against the order of the District Judge of Coimbatore declaring on the application of the respondent (the Official Receiver of Coimbatore) that the decree is of no force as against the respondent and that the execution of it by sale of the properties of the insolvent (1 defendant) in the decree cannot proceed.

(2.) The facts are simple and undisputed. The appellant is a widow and she sued the 1 defendant, her husband's brother and the 2nd defendant, son of the 1st defendant, members of the joint family of her husband, for arrears of maintenance and for future maintenance claiming a charge for the latter on certain family properties specified in the plaint. Four days after the suit was registered, i.e., on the 22nd August, 1927, the 1 defendant was adjudicated insolvent. On the 21st November the plaintiff's vakil reported that the 1 defendant had been adjudicated and asked for time to consider what should be done. On the 12th December he submitted that he did not want to add the Official Receiver as a party and elected to proceed with the suit as it stood. On this no one seriously defended the suit and on the 15 November, 1928, a decree was passed as prayed making the future maintenance a charge on the B schedule property. The respondent (appellant herein) executed her decree and tried to bring the property charged to sale. Then the Official Receiver intervened and objected to the execution on the ground that he ought to have been impleaded and that the insolvent's property had vested in him. The Subordinate Judge rejected this objection and ordered the execution to proceed. The learned District Judge in appeal reversed this order holding that the decree charging the property of the insolvent without impleading the Official Receiver is a nullity.

(3.) The order of the Lower Court so far as it dismissed the execution petition entirely is obviously wrong. The decree was obtained against two persons, the 1st defendant who subsequently was adjudged insolvent and the 2nd defendant, a minor who was defended by a guardian appointed by the Court and who has not been adjudicated an insolvent. Whatever may be the consequences of not impleading the Official Receiver who represented the estate of the 1 defendant, it can have no effect on the decree so far as it is against the 2nd defendant.