J A SANKARA RAJU Vs. KUPPAMMAL

JUDGEMENT

(1.) The facts of this case are as follow: One Narayanaswami Naicker became an insolvent. He was adjudicated on the 2nd of July, 1928. One of the creditors mentioned in the schedule was Kuppammal. She was described as a mortgagee by deposit of title deeds. She applied on the 3 of October for sale of the secured properties under Art. 18 of the second schedule to the Presidency Towns Insolvency Act. Before her application came on for orders, there was a meeting of the creditors and a composition scheme was settled according to which the creditors were to be paid Re. 0-3-9 in the rupee; and two guarantors, namely Sankararaja, brother-in-law of the insolvent, and Govindarajulu Naicker promised to find Rs. 11,000 to make up the sum required for paying the creditors. They were to be given possession of the residuary assets of the insolvent and the benefit of the good will and possession of the business premises, namely, No. 134, Anna Pillai Street and an iron safe. The first petition, the application for sanction of the scheme and the application for sale came on before Kumaraswami Sastriar, J., for orders on the 18 February. All the parties interested in all the three petitions seem to have appeared before him and, so far as the scheme matter was concerned, handed over the memo, of consent, and all the petitions were ordered in the following terms: "Order in terms within.

(2.) An order was drafted which purports to be an order disposing of all the three petitions and not merely the compensation scheme matter. If there was any mistake in so drafting one order for all the three petitions there would have immediately been an appeal. We have no doubt that all the three matters were discussed outside the Court and were brought up before the learned Judge for being dealt with in one combined order. The mortgagee Kuppammal afterwards advertised the sale of the properties. The advertisement was dated the 10 of May and the sale was on the 13 of May, One of the guarantors wanted the premises in Anna Pillai Street to be reserved to the last, but Kuppammal would not do it and the properties were sold. The purchasers filed an application for confirmation of the sale and for delivery of possession of the properties. O.S. Appeal No. 75 is against the order on this petition. Waller, J., having confirmed the sale, ordered delivery. Another petition was filed by Sankararaja, one of the guarantors, for vacating the order of Kumaraswami Sastriar, J., dated the 18 of February. Waller, J., refused to reconsider the order. O.S.A. No. 79 is against this order.

(3.) The power under Art. 18 of Schedule II seems to involve also the power to consider the validity of sale and, if proper case is made out, not to confirm sales. A formal order of confirmaton may not be necessary. If a proper case is made out for setting aside the sale, the Insolvency Court would have such power. If there is no reason to set aside, it merely confirms the sale. We have nothing to do here with the provisions of the Civil Procedure Code confirming sales in execution of decrees. The decision in Narain Das V/s. Ram Chandar (1925) I.L.R. 48 A. 209 relied on by the learned Advocate for the appellant has no bearing on a matter of this kind. In this case the ground on which the sale was sought to be set aside was that there was misrepresentation and Sankararaja discovered some time after the order of the learned Judge that Kuppammal was not a mortgagee at all. We have seen his deposition and we do not see any reason to differ from the learned Judge. His attempt to show that the promissory note and the letter showing the deposit of title deeds were antedated does not even seem to have been hinted at in the affidavit and the learned Judge declined to consider that portion of the case. Whether it is recorded as a sale by the Court or as a sale by somebody authorised by the Court, Arts. 18, 19 and 20 imply jurisdiction of the Court to confirm the sale and refuse to set it aside. The decision in Jogemaya Dasee V/s. Akhoy Coomar Das (1912) I.L.R. 40 C 140 relates to an application to the Registrar to enquire into title. We have not got to do with a matter of that kind here. The decision of the learned Judge is right and this appeal (O.S.A. No. 75 of 1929) is dismissed with taxed costs of the purchasers.