Wadsworth, J - (1.)This appeal relates to certain complications which took place following the insolvency of defendant 2. The appellant here is the Official Receiver of Guntur who is defendant 1 in the suit. The plaintiff got a decree on 16 December 1930 against the insolvent and had made one ineffective attempt to execute it before the insolvency petition was filed in 1931. The adjudication was in 1932 and the Official Receiver in the administration of the estate sold certain assets of the insolvent and his three sons. The decree-holder proved for his debt before 25th March 1935. The Insolvency Court sanctioned the distribution of a dividend out of the realisations, which amounted to more than Rs. 9000. Unfortunately, the dividend had not been distributed when on 31 August 1936 the Insolvency Court annulled the adjudication for failure of the insolvent to apply for his discharge. It appears that this annulment order was passed without any enquiry regarding the state of the administration and no vesting order was passed. On 24 September 1936 one of the creditors filed an application in the Insolvency Court, praying for the re-vesting of the assets of the ex-insolvent in the Official Receiver. While this application was still pending, on 6 October 1936 the present plaintiff filed an execution petition in which he prayed for the attachment of Rs. 6135-1-0 out of the funds in the hands of the Official Receiver, and he got an interim prohibitory order which was served on the Official Receiver on 20 October 1936.
(2.)A month later the Insolvency Court passed an order revesting the fund which was still in the Official Receiver's hands, so that it could be used for the benefit of the creditors in the insolvency. On the same day the executing Court requested the Official Receiver to send the attached sum for the satisfaction of the plaintiff's decree. Owing to the revesting order, the money was not sent and the Official Receiver made a successful claim against the attachment and the execution petition was dismissed. Hence the plaintiff was obliged to file this suit to vacate the order on the said petition. He has succeeded completely before the lower Court. There is little doubt that so far as the insolvent father's share in the property is concerned, the re-vesting order makes the amount of this sale- proceeds available to the Official Receiver. There was only an attachment at the time of the re-vesting order. This attachment will create no charge, nor would it make the money which belonged to the insolvent any the less his property. With reference to the sons shares we have listened to very elaborate arguments, but the matter seems to us to be comparatively simple. It is well, established that the attachment of the sons shares in Hindu joint family property automatically prevents the father from exercising over those shares his power to sell the property and utilise the proceeds for the discharge of his own just debts. Similarly, when the shares of the sons have been attached by a creditor before the father's assets vest in the Official Receiver, the vesting in the Official Receiver of the power of the father to dispose of his sons shares for the payment of his own debts cannot enable that power to be exercised over the properties so attached: vide Official Receiver, Coimbatore V/s. Arunachalam Chetti ( 34) 21 A.I.R. 1934 Mad. 217. It seems to follow that at the time of the revesting order, the sons shares being under an attachment by the plaintiff, the re-vesting order would give to the Official Receiver no power to sell those shares or to use the proceeds of those shares for the satisfaction of the other debts of the father to the extent of the attachment.
(3.)It has however been argued that the claim of the plaintiff to execute his decree against the shares of the sons was barred by limitation. It was admittedly a decree against the father alone which was alive as against the father by reason of the provisions of Section 78, Provincial Insolvency Act. The basis of the appellant's contention is the theory that it was open to the creditor at any time to have proceeded against the shares of the sons, when the father was an insolvent, without the leave of the Court. Whatever be the position, when the son is himself a judgment-debtor, we doubt very much whether the creditor will have such a power when his decree was in terms against the father alone and the father is an insolvent. In order to get at the property of the sons, it will be necessary for the creditor to execute his decree by what is really the exercise of the father's power. That power of sale being vested in the Official Receiver as part of the property of the father, it seems to us, that there can be no execution under that power without the leave of the Insolvency Court.