RAMALINGA CHETTY Vs. PBANANTHACHARIAR

JUDGEMENT

(1.) THE suit which has given rise to this second appeal was instituted to set aside a distraint made for arrears of rent for Fasli 1318 under the Madras Estates Land Act I of 1908. THE defendant who made the attachment is the agent of, and was put into possession of the melvaram right in the land in question by, the Official Assignee of Madras, in whom was vested the estate of the person entitled to rent as land-holder in consequence of his being adjudicated an insolvent. THE plaintiff s allegation is that no rent was due to the insolvent for Fasli 1318 in consequence of an arrangement, between the insolvent and himself, that the rent due by him should be applied in discharge of a debt due to him by the insolvent, and that he had, accordingly, so applied it. THE suit has been dismissed by the lower Courts on the ground that, under Section 17 of the Presidency Towns Insolvency Act, III of 1909, the suit was not maintainable without the leave of the Official Assignee. This view is clearly wrong. THE suit is not one by a creditor in respect of his debts. Section 17 of the Act is, therefore, inapplicable. THE plaintiff s case is that there was no rent due by him at all for Fasli 1318, as it was discharged by its being applied towards the debt due to him by the insolvent. THE suit cannot be regarded as one to enforce his right to set-off the rent against his debt. Such a suit could not be instituted in a Revenue Court. Under Section 96 of the Madras Estates Land Act, the plaintiff had a right to institute a suit to set aside an illegal or improper distraint and the Revenue Court was bound to inquire whether the distraint was legal and proper. THE decrees of the Courts below are reversed and the suit is remanded to the Court of first instance for disposal according to law. It may be observed that there is no rule of law requiring that the leave should be obtained from the Official Assignee or the Insolvency Court before any suit could be instituted against that officer or one claiming under him. An insolvent s property vested in the Official Assignee is not in custodia legis as property in the hands of a mere Receiver is, and there is no contempt of the authority of Court in instituting a suit against the Official Assignee with respect to property vested in him and in his possession. THE costs incurred up to date will abide the result.