A suit for recovery of money against an insolvent is not a legal proceeding relating to the property of the insolvent and therefore the Official Assignee is not a necessary or proper party to such a suit.

ORDER :- This civil revision petition raises the question whether on the adjudication of the defendants in a suit for recovery of money as insolvents, the plaintiff is entitled to implead the official Assignee as either a necessary party or even as a proper party and to continue the suit. The first respondent instituted O.S. No. 77 of 1877, Sub-Court, Kumbakonam, against respondents 2 to 4 for the recovery of amounts due under a promissory note executed by them in favour of the first respondent. Respondents 2 to are partners in Sundaram Fire Works. During the pendency of the suit, in I P. No. of 1972, respondents 2 to 4 were adjudicated as insolvents and their properties had also vested with the Official Assignee, Madras. Claiming that the Official Assignee is a necessary party to the suit the first respondent filed I. A. No. 259 of 1978 in O.S. No. 77 of 1977 praying for an order impleading the Official Assignee as 4th defendant in the suit.

2. That application was opposed by the Official Assignee on the ground that since the suit is one for recovery of amounts due under a promissory note, the claim would be a money claim provable in insolvency and the first respondent has to establish her claim before the Official Assignee as and when the decree or order is passed and that therefore, the Official Assignee would neither be necessary nor a proper party to the suit. A further plea was also raised that the suit does not relate to any "property" and therefore, the application is not maintainable. On these grounds, the Official Assignee prayed for the dismissal of the application. The learned Subordinate Judge, Kumbakonam, who heard the application, was of the view that since the properties of respondents 2 to 4 have already vested with the Official Assignee of Madras, he should be impleaded as a formal party, even though the first respondent has not sought any relief as against the petitioner herein. This, according to the learned Subordinate judge, was necessary in order to avoid any future technical objections and also in the interests of justice. On these conclusions, the learned Subordinate Judge allowed the petition.

3. In this civil revision petition, the learned counsel for the petitioner strenuously contends that having regard to the nature of the claim made in the suit viz., money claim, the circumstance that the executants of the promissory note have been adjudicated insolvents would not enable the first respondent to implead the Official Assignee as a defendant to the suit as the claim does not relate to any "property" as such of respondents 2 to 4. It is not in dispute that in the present case, the adjudication was under the provisions of the Presidency Towns Insolvency Act. Under S.68 of that Act, provision has been made for enabling the Official Assignee to institute, defend or continue any suit or other legal proceedings. S.68(1)(d) is the relevant Section in this connection and it reads as under :

"68(1) Subject to the provisions of this Act, the Official Assignee shall, with all convenient speed, realize the property of the insolvent, and for that purpose may -

(a) to (c) ... ..... ....

(d) institute, defend or continue any suit or other legal proceeding relating to the property of the insolvent :" (underlining mine).

The question therefore arises whether as a result of the aforesaid statutory provision, the Official Assignee is either entitled or even may be compelled to defend the suit in the instant case. The cases in which the Official Assignee or Receiver as the case may be may either enforce by suit or permit on enforcement as against him of causes of action as representing the estate of the insolvent may vided into three classes viz., (1) causes of action in suits by the insolvent pending at the commencement of the insolvency; (2) causes of action in suits pending against the insolvent at the time of the commencement of the insolvency and (3) causes of action which are either vested in the insolvent at