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2008 DIGILAW 3112 (MAD)

M. Ranganathan v. V. Mariappan (Minor) & Others

2008-08-27

S.TAMILVANAN

body2008
Judgment :- This Civil Revision has been preferred against the order, dated 13.07.2007 passed in I.A.No.12862 of 2006 in O.S.No.1623 of 1997 on the file of the V Assistant Judge, City Civil Court, Chennai. 2. The aforesaid Interlocutory Application had been filed by the revision petitioner, who was the third defendant in the suit to implead the official assignee, chennai as the fourth defendant in the suit. The revision petitioner herein has averred in the affidavit that the defendants 1 and 2 in the suit were adjudicated as insolvents in I.P.No.33 of 1996 and in I.P.No.181 of 1996 respectively and hence, the assets of the defendants 1 and 2 are vested with the Official Assignee, High Court, Chennai. Therefore, the defendants 1 and 2 have no right in the property to deal with the same and as such to contest the suit. 3. It is seen that the aforesaid suit in O.S.No.1623 of 1997 has been filed by the plaintiffs against defendants 1 to 3, seeking to declare the deed of cancellation, dated 06.01.1996 and subsequent deed of sale, dated 30.01.1996 are invalid and for other consequential relief. 4. The averments of the revision petitioner / D3 in the affidavit that the defendants 1 and 2 were declared insolvent in the aforesaid Insolvency Petitions have not been disputed by way of filing any counter affidavit. The Court below has not assigned any valid reason for dismissing the Interlocutory Application. It cannot be denied that impleading the official assignee will not prejudice the rights of the contesting parties to the suit. When they are adjudicated as insolvent, as contended by the revision petitioner, the defendant 1 and 2 cannot represented their case, as if they are the owners of the property. It is not in dispute that as per Section 61of the Presidency Town Insolvency Act, the properties of the insolvents shall be vested with the Official Assignee, High Court of Madras. Hence, the Official Assignee is the necessary and proper party to be impleaded in the suit for proper adjudication. In such circumstances, I am of the view that the impugned order passed by the court below, dismissing the Interlocutory Application is not according to law. The court below has stated that there is no supporting documents for the adjudication of defendants 1 and 2 as insolvent. In such circumstances, I am of the view that the impugned order passed by the court below, dismissing the Interlocutory Application is not according to law. The court below has stated that there is no supporting documents for the adjudication of defendants 1 and 2 as insolvent. When there is a specific averments that they were declared insolvent in I.P.No.33 of 1996 and in I.P.No.181 of 1996 respectively, when there is no specific denial, the Court below should not have dismissed the petition, on the ground that there was no supporting documents filed by the revision petitioner. Therefore, this Court is of the view that the revision has to be allowed and the impugned order, dated 13.07.2007 has to be set aside. 5. In the result, this Civil Revision Petition is allowed and the impugned order passed by the Court below is set aside. Consequently, connected miscellaneous petition is closed. However, there is no order as to costs. Since the suit relates to the year 1997, the Court below is directed to dispose the suit, after impleading the Official Assignee, High Court of Madras, on merits and in accordance with law, within a period of six months from the date of receipt of a copy of this order.