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2001 DIGILAW 1215 (MAD)

Manickam v. Namagiri Thayar

2001-10-11

K.RAVIRAJA PANDIAN

body2001
Judgment : 1. The above revision is filed against the order dated 21st July, made in E.A.No.489 of 1998 in E.P.No.32 of 1992 in O.S.No.151 of 1977 by the II Additional Subordinate Judge, Coimbatore. The said application has been filed under Order 22, Rule 10 of C.P.C. 2. The facts of the case in nutshell are as follows:- The plaintiffs filed O.S.No.151 of 1977 for recovery of sum of Rs.37,000. When the suit was pending before the Court, some creditor filed application in I.P.No.19 of 1977 against the first respondent and the firm in which he was a partner. Pending I.P interim receiver was appointed. The said appointment of receiver was challenged in the Civil Revision Petition Nos.1099,1100 and 1193 of 1977 by the partner as well as the partnership firm. Those three Civil Revision Petition were disposed of on 17.6.1977 with a direction to the trial court to dispose of the I.P. at an early date without disturbing the appointment of receiver. Further the receiver so appointed was permitted to take possession of the private property of the partners also with a clear rider that private property of the partners should not be alienated. 3. The respondent herein filed E.P.No.32 of 1992, based on the decree obtained in O.S.No.151 of 1977. That E.P. came to be dismissed on the ground that in the earlier revision petition, this Court has restricted the power of the interim receiver in respect of alienation of the properties of the partners and as such the E.P. cannot be proceeded with. That order was further taken on revision before this Court in C.R.P.No.534 of 1994. This Court by its order dated 11th February 1997, while setting aside the order of dismissed of the E.P.No.32 of 1992 held that in an execution petition for recovery of money, attachment was vacated in respect of certain items of property, which belonged to the third defendant, objection was taken that insolvency proceedings are pending against the first defendant and the property that was sought to be attached also has vested with the official receiver. Accepting the objection by the impugned order, the lower Court vacated the attachment and also dismissed the execution petition. The said order is under challenge. Accepting the objection by the impugned order, the lower Court vacated the attachment and also dismissed the execution petition. The said order is under challenge. The said order was set aside by giving reason that merely because the property could not be attached that does not disentitle the decree-holder to recover the amount in any other way. Further observation has also been made, which has been seriously disputed by the Counsel appearing for the petitioner to the effect that the property could be attached and brought to sale and the same has not vested with the Receiver appointed in the insolvency proceedings. 4. Be that as it may now the present application has been filed under Order 22, Rule 10, Order 1, Rule 10(2) read with Section 151 of C.P.C. to implead the Official receiver in the execution proceedings on the premise that the first respondent decree holder had participated in the insolvency proceedings by proving her claim. She also received certain amount from the official receiver, which the petitioner quantified in his affidavit as Rs.5,600. Hence in order to have a complete adjudication, the presence of the official receiver in the suit is necessary. On that basis the said application has been filed. The official receiver in I.P.No.19 of 1977 did not chose to file any counter. However, the respondent herein filed a counter denying all the averments made in the affidavit in total. 5. The trial Judge, after taking into consideration of the materials on record as well as the arguments has held that though the petitioner has contended that the official receiver is necessary party he has not stated the reason as party to the execution proceedings and dismissed the application. The said order is now put in issue in the present Revision Petition. 6. Learned Counsel appearing for the petitioner has submitted that the reasoning given by the trial court that the petitioner has not stated any reason as to the necessity of the Official Receiver to be a party to the proceedings is erroneous in law and in facts. The said order is now put in issue in the present Revision Petition. 6. Learned Counsel appearing for the petitioner has submitted that the reasoning given by the trial court that the petitioner has not stated any reason as to the necessity of the Official Receiver to be a party to the proceedings is erroneous in law and in facts. In his affidavit filed before the trial court in support of I.A. he has categorically state that the decree-holder, the first respondent has participated in the insolvency proceedings in I.P.No. 19 of 1977 and proving her claim she received a sum of Rs.5600 and in order to prove the receipt of the payment, the Official receive is a necessary party to the execution proceedings. He also contended that the provision Order 21, Rule 2 of C.P.C. also bars, out of Court settlement of decree. Hence in order to prove payment, in the I.P proceedings, the second respondent is a necessary party to the proceedings. 7. On the other hand, learned counsel appearing for the respondent has submitted that once the order in C.R.P.No.534 of 1994 has become final., the plea of the petitioner herein for implement of the second respondent Official Receiver is not available to him. He elaborated his argument to the effect that by the order in C.R.P.No.534 of 1994, this Court has clearly stated that the pendency of the I.P. proceedings would not in any way preclude the decree holder the 1st respondent herein to proceed could be attached and brought to sale and the same has not vested in Receiver appointed in the insolvency proceedings, the 2nd respondent is not a necessary party. 8. I herd the learned counsel appearing on either side and pursed the materials on record. 9. I am not able to conceive in what way the order in C.R.P.No.534 of 1994 would preclude the petitioner from filing the present petition. As stated already in the affidavit as well his argument it is submitted that the respondent decree holder has participated in the I.P. proceedings and by proving her claim she has received a sum of Rs.5600. When such is the position in order to prove the payment of the amount by the petitioner, I am of the view that the presence of the official receiver is necessary in the execution proceedings. When such is the position in order to prove the payment of the amount by the petitioner, I am of the view that the presence of the official receiver is necessary in the execution proceedings. In order to sustain his case, learned counsel for the petitioner relied on the decisions in Birnedra Mohan v. Rajshahi Co-opr Town Bank, AIR 1945 Cal. 400 abd in Venkata Suryanarayan v. Official Receiver, AIR 1965 AP 451 to prove that the position of the petitioner with that of the Official Receiver is coterminous. Since on facts in order to prove that the payment has been made by the Official Receiver the presence of the Official Receiver is necessary, I do not venture to test whether the position of the petition its absence of any of his property of the petitioner in the absence of any of his property is attached by virtue of this order, is coterminous with that of the official receiver. 10. For the forgoing reason, the order of the Additional Subordinate Judge, Coimbatore, in this petition is unsustainable in law and it is set aside and the Civil Revision Petition is allowed. The II Additional Subordinate Judge is hereby directed to implead the second respondent as prayed for in the petition in E.A.No.489 of 1998. Consequently, the connected C.M.P. is closed. No costs.