G R VENKATARAMA SASTRIAR Vs. OFFICIAL RECEIVER, REPRESENTING THE ESTATE OF THE INSOLVENT AND THE GENERAL BODY OF CREDITORS IN , SUB-COURT

JUDGEMENT

(1.) The appellant in these two appeals is a creditor in an insolvency petition in which one G.S. Venkata-ramana Aiyar was adjudicated insolvent. The appellant's debt related to a promissory note of which the insolvent and another were the endorsees. No doubt because the insolvent was not alone concerned, the appellant applied for leave to sue him together with the other party to the endorsed note and obtained an order in the following terms: The Official Receiver reports that leave may be granted. I therefore grant leave to sue the insolvent also with the condition that the money if any realised from the insolvent must be handed over to the Receiver for distribution. The petitioner can only rank as an ordinary creditor and share with others in case he gets a decree against the insolvent and realises from him.

(2.) The appellant accordingly brought a suit against the insolvent and his five undivided sons, and against the other endorsee to-the note and his son, and obtained a decree on the 29th December, 1927.

(3.) In the insolvency proceedings the Official Receiver fixed the sale of the joint family property of the insolvent for the 9 March, 1928. On the day before, the 8th, appellant made an application that the sale should be stayed, supporting it with an affidavit to the terms of which we will refer later. The sale was accordingly put off and on the 15 the learned Subordinate Judge passed an order to the effect that both sides had agreed that the right, title and interest of the family of the insolvent, including those of his sons, should be sold by the Official Receiver. Meanwhile on the 6 March the appellant had applied for the attachment of the son's shares under his decree and the attachment was actually effected on the 15th. Upon this there ensued an order by the executing Court, dated 13 July, 1928 in which it was observed that the attachment deprived the Official Receiver of the power to sell the sons shares and therefore that the order of the 15 March that the Official Receiver was to sell the whole property could not stand. The executing Court accordingly concluded that the Official Receiver could only sell the share of the insolent himself, i.e. 5/6 of the property and that the remaining 5/6 should be sold in execution. This order was brought up to this Court in C.M.A. No. 280 of 1928 and it was decided that since the decree-holder had agreed to the sale by the Official Receiver it was not open to him to pursue his execution petition for sale. The Official Receiver was therefore to sell the whole property, and when that was done the rights of the parties could be determined in due course. The Official Receiver has now sold the whole property. Of the sum that was realised, as to the 1/6 share of the insolvent himself no question arises and it has been sent to the Official Receiver for distribution. The question that remains is with regard to the remainder, a sum of Rs. 9,050, representing the 5/6 shares of the sons.