VISWANTHAN CHETTIAR Vs. OFFICIAL RECEIVER OF COIMBATORE

JUDGEMENT

(1.) These petitions arise out of execution proceedings which were started by the petitioner in the Court of the District Munsif of Udumalpet. The petitioner had obtained a decree against one Madha Naicken and his son on the 8 July, 1935, the decree amount being Rs. 2,702-12- 0. On the 21 October, 1935, he filed an execution petition for attachment of the immovable properties of the judgment-debtors. The attachment was ordered on the 1 November, 1935. Subsequently on the 6 November, 1935, Madha Naicken, the father who was one of the judgment-debtors filed I.P. No. 199 of 1935 in the Court of the Subordinate Judge at Coimbatore for being adjudicated insolvent. On the 1 of September, 1936, he obtained an order of adjudication and the Official Receiver of Coimbatore was appointed interim receiver of his properties. Thereupon the Official Receiver in his capacity as interim receiver applied to the District Munsif on the 26 March, 1936, for stay of execution proceedings and his request was granted by the learned District Munsif, Against that order, the petitioner has filed C.R.P. No. 1381 of 1936. He had also appealed to the District Judge of Coimbatore who has upheld the order of the District Munsif staying execution proceedings. In his judgment the learned Judge has also upheld the contention urged on behalf of the respondent that no appeal lay, the petition of the Official Receiver before the District Munsif being in the nature of a claim petition. Against the order of the learned Judge the petitioner has filed C.R.P. No. 947 of 1937. He has also presented C M. P. No. 3086 of 1937 to convert C.R.P. No. 947 of 1937 into a Civil Miscellaneous Appeal, should it be held that the order of the learned Judge is appealable and that consequently no revision petition lies to the High Court. It is however not necessary to deal with these aspects of the case since no technical objection has been taken on behalf of the respondent to anticipate which these different petitions have been filed.

(2.) The learned Advocate for the petitioner contends that the District Munsif of Uddmalpet has refused to exercise a jurisdiction that is vested in him in making the order against which the first Civil Revision Petition is presented. To appreciate this argument, it is necessary to refer to the reasons given in the order of the learned District Munsif for staying execution proceedings. Subsequent to the insolvency of Madha Naicken the petitioner was trying to bring the properties of Madha Naicken's son to sale in executing the decree that he had obtained against both the father and the son. His contention before the learned District Munsif was that he was entitled to proceed with the sale of the son's share because the son has not been adjudicated insolvent and consequently the son's share did not vest in the Official Receiver. He also contended that even if the Official Receiver wanted to proceed against the son's share on the ground that the father's right to dispose of the son's share had become vested in him on the insolvency of the father that argument could be successfully met by the petitioner relying on the order of attachment of the son's share which, as already stated, was obtained by him on the 1 of November, 1936. This attachment being prior to the insolvency of the father, the Official Receiver's right if any to exercise the father's privilege of selling the son's share for his debts has-been destroyed.

(3.) The contentions urged before the learned District Munsif on behalf of the Official Receiver were that the property that was sought to be attached by the petitioner was the self-acquired property of the father Madha Naicken and not his joint family f property and that consequently the son of Madha Naicken did not have any interest in it. The learned District Munsif states in his judgment that the question which he has to determine is whether the properties are the self-acquisitions of Madha Naicken or the joint family properties of Madha Naicken and his son Ramaswami Naicken. Following the decision in Official Receiver, Kistna V/s. Kodandaramayya , he has held that the proper Court to determine this question is the Sub-Court at Coimbatore before which the insolvency proceedings took place as otherwise it might lead to multiplicity of proceedings of a conflicting nature. He granted a stay of execution proceedings as prayed by the Official Receiver and directed the petitioner to apply to the Sub-Court at Coimbatore under Section 4 of the Provincial Insolvency Act.