PARUCHURI VENKATRAMAYYA Vs. ABBURI VIRAYYA

JUDGEMENT

(1.) Defendants 2 to 5 in O.S. No. 752 of 1930 on the file of the learned District Munsif of Guntur are Virayya, Ponnayya, Nayudamma and Venkayya, members of a joint Hindu family. In 1927 one Kotha Rattamma obtained decrees against these Defendants. In January 1928 Virayya and Ponnayya were adjudicated insolvents. At some time in 1930 subsequent to 5th March, Rattamma executed these decrees by bringing to sale the shares of the non-insolvent members, Nayudamma and Venkayya. Meanwhile, on 5 March 1930 one Abburi Virayya Defendant 1 in O.S. No. 752 brought a suit against all the members of the family on a promissory note executed by Virayya and Ponnayya, the two insolvents. He obtained a decree ex parte in April 1930 and in September 1930 was awarded rateable distribution from the proceeds of the sale above referred to. Shortly afterwards this suit O.S. No. 752 was brought by Plaintiff, who claims under a will executed by Rattamma, for a declaration that Defendant l's decree was invalid, collusive and fraudulent, and for the return of the money paid to him in the rateable distribution.

(2.) The learned District Munsif decreed Plaintiff's suit on a pure question of law. He held that Defendant l's suit in 1930 against the two insolvents and the two other members of their family was filed with a knowledge of the insolvency and offended against the provisions of Section 28 of the Provincial Insolvency Act. The decree obtained by Defendant 1 was therefore void, the Court having no jurisdiction to pass it. On appeal the learned District Judge of Guntur, relying upon a decision of a Bench of this Court in Subramanyam V/s. Narasimham (1928) 56 M.L.J. 489 held that the decree was not void, even though the suit had been filed with knowledge of the insolvency and remanded the suit for trial upon the remaining issues. Against this order Plaintiff has appealed, and the question which I have to decide is whether Defendant l's decree is or is not void by reason of the provisions of Section 28 of the Provincial Insolvency Act.

(3.) There can be no doubt in the first place that Defendant l's suit did offend against the provisions of Section 28. The suit was not filed against the non-insolvent members of the family alone, and as the learned District Munsif has rightly pointed out, could not have been so filed even had Defendant 1 wished to take that course.