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1973 Supreme(Raj) 106
Rajasthan High Court
Beri, C.J. & Joshi, J.
Official Assignee - Appellant
Versus
Subhkaran - Respondents
D.B. Civil Special Appeal No.46 of 1965
Decided On : May 13, 1973
H.C. Jain, for Appellants; Sumer Chand Bandari, for Respondent
Headnote:(a) Civil P.C., O. 3, R. 5—Advocate filing Vakalatnama in first appeal to High Court competent to present appeal u/s. 18 of High Court Ordinance.(b) High Court Rules, R. 436—Advocate filing Vakalatnama in first appeal before High Court competent to present appeal u/s. 18 of High Court Ordinance.(c) Insolvency—Presidency Towns Insolvency Act, Secs. 17 and 45(2) — Decree of Court in Churu (formerly in State of Bikaner) decree of foreign court vis a vis High Court at Calcutta — Properly of judgment debtor in Churu did not vest in official assignee appointed by High Court of Calcutta—Discharge of insolvent did not absolve him of decretal debt of Churu Court as same was not provable before official assignee at Calcutta.
Counsel for the appellants challenged the judgment of the learned Single Judge on the following grounds–
Held = That the application of the decree-holder-respondent was barred by time as the previous three applications made prior to the present fourth application were not in accordance with law in as much as on the passing of the adjudication order against appellant Jiwanmal on 6-9-1949 the property had vested in the Official Assignee of Calcutta High Court who was a necessary party to the previous execution but he was not impleaded in those applications. That the appellant Jiwanmal was discharged on 23-6-1955 by the Calcutta High Court and all his liabilities including the decretal debt in question stood wiped out and could not be enforced by way of an execution application.
Held = That the vesting contemplated under sec. 17 takes effect over the property wherever situate within British India whether in the presidency town or in the maufassil. The adjudication order however, does not operate to vest insolvents immovable property situate in a foreign State in the official assignee. The Churu court was a foreign court at the time when the judgment-debtor was adjudged insolvent by the Calcutta High Court. The order of adjudication passed by the Calcutta High Court, therefore, could not be recognised to vest the insolvents property situate in a foreign territory in the Official Assignee. In this view of the position of law, it is very difficult to hold that the Official Assignee was a necessary party to the previous execution applications. The property in question had not vested in the Official Assignee as the Churu territory was a foreign territory vis a vis the Calcutta High Court which passed the order of adjudication in the year 1948. We are, therefore, in accord with the view taken by the learned Single Judge that the debt was not extinguished, and could be enforced against the estate of the judgment-debtor which was existing in the foreign territory at the time when the order of adjudication was made by the Calcutta High Court.
Held = The decree of the Churu Court was that of a foreign court, and could not be held to be executable in the British Indian territory even after the extension of the applicability of the Code of Civil Procedure under the Adaption Act of 1951. As a natural corollary the debt was not provable under sec. 45(2) of the Presidency Towns Insolvency Act. The decretal debt in question being not provable u/s. 45(2) the question of release of the insolvent from his liabilities cannot arise u/s. 45(2) of the Presidency Towns Insolvency Act. (Paras 6, 9 and 10)
2. The facts which are relevant for appreciating the controversy in this appeal briefly stated are: Messrs Chunilal Hajarimal lent a sum of Rs. 5000/- to the appellant No. 2 at Calcutta. The said creditor instituted a suit No. 80 of 1947-48 at Churu for the recovery of the amount and got the house of Jivanmal appellant attached before judgment. This suit was decreed for Rs. 5048-40 with costs on 29-4-1950.
3. During the pendency of the suit Jivanmal appellant was adjudged insolvent by the order of the Calcutta High Court on 16-9-1949. Official Assignee of the Calcutta High Court was appointed Receiver of the properties of the respondent Jivanmal including his house at Churu by interim order of the Calcutta High Court on 14-2-1949. After obtaining decree at Churu the appellants put the decree into execution and prayed for sale of the attached house on 11-5-1950 in execution case No. 78 of 1951. On 29-5-1950 the execution court ordered that since judgment-debtor had been adjudged insolvent the decree-holder should implead the Official Assignee as party to the execution application. This order was challenged by the decree-holder by way of appeal but the appellate Court also upheld the order and dismissed the appeal holding it to be barred by time and further holding that the Official Assignee was a necessary party. The execution proceedings continued in the executing Court despite the failure of the decree-holder to implead the Official Assignee. On 15-9-1951, the executing Court dismissed the first execution application as unsatisfied. On 8-9-1954, the second execution application was filed. In this application too, the Official Assignee was not impleaded. The judgment-debtor filed an objection that the house had vested in Official Assignee and could not be sold in the execution of the decree. The objection was over-ruled by the executing Court in its order dated 17-3-1958 on the ground that the Calcutta High Court was a foreign court when the order of adjudication was made by it. Dissatisfied the judgment-debtor preferred an appeal before the District Judge, Bikaner, who accepted the appeal on 15-12-1959 and remanded the case directing the decree-holder appellant to implead the official assignee and after serving notice upon him should decide whether the attached house could be sold in the execution of the decree. In the mean time the third execution application No. 110/58 was filed on 6.11.1958 that too without impleading the Official Assignee. This application was dismissed on 5-3-1960 for want of supplying process-fee etc. The fourth execution application No. 33 of 1960 was presented in the execution Court on 15-3-1960 in accordance with the order of the appellate Court dated 15-12-1959. In this application of course the Official Assignee was made a party for the first time. The Official Assignee filed objection as to the maintainability of the execution application as barred by time against him. This application was dismissed on 28th of August, 1961 by the Senior Civil Judge, Churu, holding that the same was barred because inspite of the order dated 29-9-1950 by the executing Court a period of nearly 19 years had elapsed between the passing of the decree and joining the Official Assignee Calcutta as a party to the execution proceedings, and, therefore, the execution application stood barred by time against the Official Assignee. On appeal the judgment of the Senior Civil Judge was upheld by the District Judge Bikaner by his judgment dated 24th of May, 1963. Being dissatisfied with the judgment of the District Judge, Bikaner, the respondent-decree-holder p
