C R SUBRAMANIA AIYAR Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) We are asked to revise the order of the District Judge of West Tanjore (Mr. Viswanatha Sastri) setting aside a sale held in execution of a decree which had been confirmed by the Subordinate Judge of Kumbakonam. The sale was held on 30 September, 1920. Seven days previously, on 23 September, the 1st judgment-debtor who is the father of the other judgment-debtors presented an insolvency petition. An interim Receiver was appointed and he wrote and asked the Subordinate Judge to stop the sale. It was nevertheless held and confirmed by the Subordinate Judge on 27 November. An adjudication order in insolvency was made on 15 December. A year later the adjudication was annulled by the District Judge and the annulment was set aside by this Court on 23 January, 1923.

(2.) At the outset it will be well to clear the ground of two errors. The learned District Judge states in his order that the adjudication took place on 28th September, 1920. The order which is before us is under the hand and seal of the Official Receiver of the Tanjore District and is dated 15 December, 1920. Next the affidavits filed in support of the petition under Order 21, Rule 90, to set aside the sale declare that the properties of the insolvent had become vested in the Official Receiver. Under Section 28 of Act V of 1920 vesting only takes place upon adjudication, and under Section 29 it is not till then that a Court in which proceedings are pending against a debtor, is bound to stay them.

(3.) An interim Receiver has under Section 20 only the powers of a Receiver appointed under the Civil P. C. and he is not clothed even with those powers till he takes possession of the debtor's properties. This is clear from the section itself. A Receiver appointed under the Code must obtain possession before the leave of the Court is required for disturbing his possession. Until he is actually in possession a creditor is not debarred from proceeding to execution vide Livinia Ashton V/s. Madhabmoni Dasi (1910) 11 CLJ 489, Kanailal V/s. Manoo Bibi (1910) 11 CLJ 489 and Rajah Jagadish Chandra Deo Dhabal Deb V/s. Bhubaneswar Mitra (1922) 27 CWN 38.