Postponement of the sale of property in execution.

ORDER :- The order of the learned District Munsif, Rasipuram in R. E. A. 156 of 1982 in R. E. P. 301 of 1981 in O.S. 635 of 1972 is questioned in the above revision.

2. It appears from the facts of the case and also as argued by the respective Counsel appearing for the parties, that the respondent herein filed O.S. 635 of 1972 before the District Munsif's Court, Namakkal, against the petitioners herein. The second petitioner is the wife of the first petitioner. The plaintiff, who is the respondent herein, obtained a decree against the petitioners, who were the defendants in the suit, for a sum of Rs.5,000/- on 12-6-1972. In pursuance of the decree obtained by the plaintiff, E.P. 301 of 1981 was filed before the executing Court to attach and to sell the property belonging to the judgment-debtors situate in S. No. 20/3 Moolakurichi Village measuring 3.93 acres with a well and pumpset.

The judgment-debtors having received the notice of the execution petition filed R. E. A. 156 of 1982, wherein they contended that they have filed I. P. 9 of 1982 before the Sub Court, Namakkal to adjudge them as insolvents on the ground that they are unable to pay the debts of the pressing creditors. It was also contended by the judgment-debtors that they have also filed I. A. 31 of 1982, for the appointment of an interim Receiver of the properties mentioned in I. P. 9 of 1982. It was also contended in the affidavit filed by the first petitioner herein that orders have been passed in the Receiver petition on 9-3-1982, and that the said order was communicated to the Official Receiver, Salem. Under the circumstances, the judgment-debtors-petitioners herein sought postponement of the sale of the property.

3. The executing Court, after going through the affidavit and the counter-affidavit filed by the parties, passed the following order :-

"Heard both sides. No notice or order recorded from Official Receiver. Hence this petition is dismissed."

It is this order of the executing Court that is assailed in the above revision petition.

4. Learned Counsel Mr. S. Palaniswami appearing for the petitioners, contends that when once the judgment-debtor brings to the notice of the executing Court that he has filed a petition for insolvency and that orders have been passed, it is the duty of the executing Court to stop further action in the execution proceedings. Reliance is placed by the learned Counsel for the petitioners on an unreported judgment of Fakkir Mohammed, J. in C. R. P. No. 2050 of 1981, Kandasami Gounder v. P. Kandasami dated 23-12-1981, wherein the learned Judge has observed :-

"Therefore it will not be conducive in the interest of both the decree-holder and the judgment-debtors to proceed with the sale of the property once the judgment-debtors filed the insolvency petition which has been admitted in this case. In the circumstances, the adjudication proceedings have to be expedited and till suitable orders are passed in the insolvency petition, the sale of the property has to be deferred and if sold, the confirmation of the sale has to be deferred."

It is on the strength of this observation, learned Counsel appearing for the petitioners contends that this revision has to be allowed and the order of the executing Court is erroneous.

5. This Court in Venkatasivayya v. Suryanarayana, 48 Mad LW 279 : (AIR 1938 Mad 906) considered the powers of the executing Court enjoined under Ss.28 (2), 51 and 52 of the Provincial Insolvency Act. Venkataramana Rao, J. has held that:

"Section 52 directing the Court to deliver the property to be sold to the Receiver in the insolvency did not apply in the absence of an application in that behalf by the Receiver."

The learned Judge, dealing with Sec.28(2) of the Act pointed out that on the making of an order of adjudication, the whole of the property of the insolvent vests in the Court or in an Official Receiver appointed by the Court, but until then the property of the insolvent is not divested from him and every credito