RANGAMMAL Vs. VARADAPPA NAIDU

JUDGEMENT

(1.) THE Insolvency Court was moved to annul a sale made by the insolvent in his wife's favour. No Official Receiver having been appointed, the application was made by a creditor and the question is, whether he was competent to make it. Before the insolvency petition was filed, this particular creditor had filed a suit against the insolvent and attached the property in question. THE judgment debtor's wife intervened with a claim, which under Order 21, Rule 58, Civil Procedure Code was allowed. THE contention now put forward on her behalf is, that the order made on the claim petition having become conclusive under Order 21, Rule 63 as between her and the creditor, he is precluded from reagitating the same matter in insolvency. This contention is clearly untenable. Under Art. 11 of the Limitation Act the suit prescribed by Rule 63 should be brought within one year from the date of the summary order. THE argument is, that such a suit not having been brought, the order made on the claim petition has become conclusive as between the claimant and the attaching decree-holder. But in bringing the suit under Rule 63 the attaching creditor acts on his own behalf and by the decision in that suit only the parties to it are bound Donepudi Subramaniam V/s. Nune Narasimham (1928) 56 M.L.J. 489 at 502 and 506 but in moving the insolvency Court the applicant has acted in a representative capacity, that is to say, on behalf of the creditors generally and the fact that the person who has moved, happens to be the creditor against whom an adverse order was previously made, is but an accident. It cannot be suggested that the application in question could not have been made by another creditor or by the Official Receiver had there been one. THE fact is, that the disability, is a personal one, and the previous order does not bar the right of the creditors to re-agitate the question. That being so, the application to the lower Court, though made by the same creditor, was made by him in a different capacity and the objection therefore cannot prevail.

(2.) THE lower Court's order is right and the Civil Revision Petition is dismissed but without costs.