LEELAVATHI AMMAL Vs. NENI KAVUR BAI

JUDGEMENT

(1.) This is an appeal against the order of the Additional City Civil Judge, Madras, dismissing an execution petition filed by the appellant for the execution of a money decree obtained by her in O.S. No. 1001 of 1939 on the file of his Court. While the suit was pending the appellant had the property now in dispute attached before judgment. The attachment was made on 19 . April, 1939. On 16 January, 1940, the defendant sold the property to the respondent who took it, of course, subject to all claims enforceable under the attachment. On 10th January, 1941, the appellant obtained a decree for Rs. 4,043-1-0 with subsequent interest. On 25 February, 1941, the judgment-debtor was adjudged insolvent and his estate vested in the Official Assignee, Madras. The present execution petition was filed on 3 May, 1941, praying for the realisation of the decree amount by sale of the attached property after bringing on the record the respondent who had, as already mentioned, purchased the property pending the attachment and also the Official Assignee. Notice of the petition was issued to the respondent only, the appellant stating in the Court below that she did not want the Official Assignee to be added as a supplemental defendant. On the opposition of the respondent who was the only party before this Court, the petition has been dismissed as not maintainable. The ground of the decision, so far as we are able to gather, seems to be that the property attached, notwithstanding the alienation, vested in the Official Assignee on the insolvency of the judgment-debtor, that the appellant's remedy was to prove her debt in the insolvency and that it was not open to her to proceed in execution against the attached property without the Official Assignee being made a party.

(2.) It is settled law that a private alienation by the judgment-debtor of property attached by the decree-holder is not void absolutely but is only void against claims enforceable under the attachment. The adjudication of the debtor automatically puts an end to the attachment and vests the property in the Official Assignee free of the attachment, but it has no such efficacy as regards an alienation made by the insolvent before his adjudication. Until the alienation is set aside by appropriate proceedings taken under Section 55 or 56 of the Presidency Towns Insolvency Act or Section 53 of the Transfer of Property Act, it stands good unless again the property was vested in the insolvent at the commencement of the insolvency within Section 52 (2) (a). It is not the case of the respondent that the property has vested in the Official Assignee by virtue of the last mentioned provision of law or that the alienation has been set aside by any proceedings taken by him. That being so, the Official Assignee has no present title to the property in question and we need not pause to consider whether he is entitled to take steps to have the alienation set aside by proceedings to be hereafter instituted. In Chidambaram Chettiar V/s. Sellakumara Goundan (1941)2 M.L.J. 684 (F.B.), a Full Bench of this Court was called upon to consider whether leave of the Insolvency Court is necessary before a creditor can institute a suit under Section 53 of the Transfer of Property Act to set aside an alienation made by the debtor in fraud of creditors, before the commencement of the insolvency. It was held that the leave of the Insolvency Court is not necessary as even after the adjudication, the fraudulent alienation is not wholly void and, but is only voidable, and until avoided the title remains in the transferee and therefore the property does not form part of the estate of the insolvent which vests in the Official Assignee or the Official Receiver under the Insolvency Act. It was pointed out that a suit under Section 53 in those circumstances was not really one respecting the property of the insolvent and it will not become the property of the insolvent until the Official Assignee obtains a declaration for setting aside the sale either under Section 53 or, we may add, by other appropriate proceedings. We cannot therefore understand what purpose is to be served by adding the Official Assignee as a party in the execution proceedings and indeed we can see no reason why the decree-holder should be obliged to implead a person whose interest is not sought to be proceeded against.

(3.) In the above discussion we have used language which would appear to mean that the Civil P. C. permits the joinder of parties in execution proceedings. In doing so we have only adopted the phraseology used in several reported cases. But we may point out that the use of such language is strictly speaking incorrect. Section 50 authorises a decree-holder to apply for the execution of the decree against the legal representative of the judgment- debtor, if he has died without fully satisfying the decree. Section 53 merely declares that a son or other descendant of the judgment-debtor liable under Hindu law for the payment of his debt shall be deemed to be his legal representative. Order 21, Rule 11 only states the particulars that have to be mentioned in an execution petition and all that it requires is that the names of parties to the suit and the name of the person against whom execution of the decree is sought should be mentioned in this petition. Rule 22 only requires the issue of notice in certain cases to the person against whom execution is applied for requiring him to show cause on a date to be fixed why the decree should not be executed against him. There are certain other provisions such as those in Rules 66 and 92 for the issue of notice to the parties affected and for the summoning of the obstructor under Rule 97 and of the decree-holder or purchaser, as the case may be, under Rule 100. These provisions can by no stretch of language be deemed to relate to joinder of parties in execution. They only provide for the issue of notice to parties sought to be affected by the proceedings taken. It is scarcely necessary to add that the provisions of the Code relating to the joinder of parties in a suit have no application to proceedings taken for the execution of a decree after it is passed.