C S PONNUSAMI MUDALIAR Vs. SUBBARAYA MUDALIAR

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Cuddalore dated the 19th March, 1945, dismissing an application by the appellant to set aisde a sale of lot No. 3 in a sale held on the 26 October, 1943.

(2.) The principal ground on which the sale was sought to be set aside was that a number of houses had been clubbed together as lot No. 3 and were sold together instead of separately, in which case the sum of the prices realised on individual sales would have been more than the amount realised by a sale of the houses clubbed together. The learned Subordinate Judge devoted a great part of his judgment to a consideration of the question whether an application by the appellant was maintainable, in view of the circumstance that he had been declared an insolvent, and he came to the conclusion that the application was not maintainable. Fortunately however, he also considered the application on its merits, and held that on that ground also no sufficient reason had been shown for setting aside the sale.

(3.) The learned Subordinate Judge primarily relied on Hari Rao V/s. Official Assignee, Madras (1926) 50 M.L.J. 359 in which on a question of insolvency law it was held that an insolvent had a mere spes successions in the property in the hands of the Official Receiver and that he was not therefore a person aggrieved. Although the learned Subordinate Judge apparently read Manthiri Goundan V/s. Arunachalam (1940) 1 M.L.J. 711 in which it was held that the decision in Hari Rao V/s. Official Assignee, Madras (1926) 50 M.L.J. 359 had no application to petitions filed under Order 21, Rule 90, of the Civil Procedure Code, yet he rather surprisingly expressed the opinion that Manthiri Goundan V/s. Arunachalam (1940) 1 M.L.J. 711 was no longer good law ; because since that decision Order 21, Rule 22, had been amended so as to make it incumbent on the Court in the case of applications for execution to issue notice to the Official Receiver instead of to the insolvent. The amendment of Rule 22 of Order 21 cannot however affect the question whether the insolvent was a person interested within the meaning of Order 21, Rule 90 ; and . since it was held in Manthiri Goundan V/s. Arunachalam (1940) 1 M.L.J. 711 that an insolvent was a person interested within the ordinary meaning of that expression and that the decisions based on insolvency law in which it was held that the insolvent was not a person aggrieved had no application to petitions under Order 21, Rule 90, it would follow that the learned Subordinate Judge was wrong on this point. It is unnecessary to say anything more on this point ; because the learned advocate for the respondents at once conceded that he cannot support the judgment of the Subordinate Judge on that ground.