SENTHILVEL GOUNDER Vs. VENKITACHALAM CHETTIAR
HIGH COURT OF MADRAS
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G. Ramanujam, J. -
(1.) THE petitioner herein purchased a house property in an auction held by the Official Receiver in insolvency proceedings on 25th October, 1969. He also obtained a sale certificate dated 25th November, 1969. Subsequently he approached the District Munsif of Udumalpet for delivery of possession. The District Munsif ordered delivery without notice to the respondent who was in possession of the property as a lessee from the Official Receiver presumably under Order 21, Rule 96 of the Civil Procedure Code and the petitioner took possession of the property purchased by him. Admittedly the respondent's lease will expire only on 4th September, 1970. The respondent, the tenant under the receiver and whose tenancy continues up to 4th September, 1970 filed an application before the same District Munsif, under Order 21, rules Order 21, rule 100 and 101 of the Code of Civil Procedure for re -delivery of possession of the properties delivered in E.A. No. 1970 of 1969 on 8th December, 1969. The respondent contended before the learned District Munsif that the lease in his favour has not expired, that the order directing delivery without notice to him was invalid and that the possession of the property should be re -delivered to him. The learned District Munsif held that the respondent was entitled to get re -delivery of possession of the properties. The petitioner questions the correctness of the order passed by the learned District Munsif directing re -delivery of possession.
(2.) THE learned Counsel for the petitioner contended that the Court below had no jurisdiction to entertain the respondent's petition for re -delivery under Order 21, Rules 96, 100 and 101, Civil Procedure Code, and that the proper remedy for the respondent was to approach the Insolvency Court under Section 4 of the Provincial Insolvency Act. The learned Counsel contends, that the application filed for re -delivery by the respondent is not maintainable on the execution side of the lower Court. It is well established that the proper Court to adjudicate on matters relating to the sale held by the Official Receiver is the Insolvency Court and not the Court acting under Order 21, of the Civil Procedure Code. But curiously the petitioner has himself moved the learned District Munsif on the execution side under Order 21 of the Civil Procedure Code to get delivery of the properties in pursuance of the sale certificate given in his favour by the Official Receiver. If his contention that the provisions of Order 21, cannot be invoked in relation to a sale held by the Official Receiver is to be accepted, then on the same reasoning it must be held that the earlier orders passed by the learned District Munsif on his petition for delivery would also be without jurisdiction. The learned Counsel referred to the decisions reported in Muthupalaniappa v. Raman Chettiar : AIR 1941 Mad 75 , and Khetmal v. Chhaganraj . Wadsworth, J., in Muthupalaniappa v. Raman Chettiar : AIR 1941 Mad 75 , had laid down that it is only the Insolvency Court which can entertain an application for re -delivery of possession, when once the sale has been held and possession given by the Official, Receiver. According to the learned Judge, Order 21, Civil Procedure Code, does not ordinarily apply to sales by an Official Receiver who is not required to follow the procedure laid down in the said order and has powers different from those of an executing Court. In that case the Official Receiver delivered possession of the property to the purchaser in pursuance of the sale by him. An application was filed before the District Court for re -delivery by the affected person whose possession was adverse to the insolvent under Order 21, rules 100 and 101, Civil Procedure Code, and Section 5 of the Provincial Insolvency Act, this Court held that the petition for re -delivery can be made only to the Insolvency Court and not to the civil Court acting under Order 21, Civil Procedure Code. The decision in Khetmal v. Chhaganraj , also lays down the well -known principle that under the scheme of the Insolvency Law, all matters relating to the annulment of transfers should be adjudicated by the Insolvency Court under the Insolvency Law and that the validity of such transfers cannot be decided otherwise in other proceedings. It is true as per these decisions the Courts below cannot pass an order for re -delivery under Order 21, Rules 100 and 101, Civil Procedure Code. But on the reasoning it must be held that the District Munsif should not have entertained an application for delivery of possession of the properties in pursuance of a sale held by the Official Receiver. The petitioner on his own showing should have approached only the Insolvency Court for taking delivery of possession; once the earlier order of the District Munsif is found to be without jurisdiction then naturally he can set aside his own order by invoking the power under Order 21, Rules 96 and 100, Civil Procedure Code. The Court is bound to rectify its own mistake and recall the wrong order passed by it. The Court below has in effect set aside a wrong order passed by it. In the view I have taken, the order passed by the learned District Munsif is right and no interference is called for. The revision petition is dismissed. There will be no order as to costs.;
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