Official Receiver is required to prove about the genuineness of salary down by respondent.

This civil revision petition is directed against the judgment in C.M.A. No.177 of 1985 on the file of II Additional District Judge.Salem, confirming the order passed in I.A.No.123

of 1984 on the file of Subordinate Judge, Namakkal.

2. Short facts are: the respondents filed debtors petition for adjudicating them as insolvents in LP. No.17 of 1982 on the file of Sub Judge, Namakkal. The insolvency court allowed the petition and the estate of the insolvents was vested with the Official Receiver. While so, the respondents filed I. A. No.123 of 1984 under Sec.28(5) of the Provincial Insolvency Act, praying for release of the properties from the administration of the Official Receiver. That was resisted by the Official Receiver. After enquiry, the learned Subordinate Judge, had allowed the petition. Aggrieved by the same, the Official Receiver had filed appeal in C.M.A. No.177 of 1985 and having failed there, has come forward with this civil revision petition.

3. Mr.Jagadeesan, learned counsel appearing for the revision petitioner would submit that the (i) second respondent was employed as a scavenger in the Municipality drawing salary of more than Rs.500 per month and so she cannot be classified as a labourer so as to claim the benefits of Sec.60(c) of the Act. (ii) the debtors themselves shown had the house as one of their assets in their petition and while so they cannot now put forward a claim that they are to be released from the administration of Official Recover; and (iii) in E.P. No. 1012 of 1981 on the file of District Munsif, Namakkal, filed by one of the creditors, the respondents, who are judgment- debtors in the said E.P. proceedings did not raise the plea that this house did not belong to the debtors and did not take steps to raise the attachment and while so, by’ virtue of the principles of constructive res judicata they cannot raise this plea in this insolvency proceedings, (iv) After vesting of the properties with the Official Receiver, the debtors cannot seek for release of the same and that stage was already over and by not having raised that ground at the time of vesting, they must be deemed to have waived that right and so they cannot raise it now. I have heard Mr.S.P. Subramanian, learned counsel appearing for the respondents on the above aspects.

4.I have carefully considered the submissions made by rival counsel. I shall consider the submissions made by Mr. Jagadeesan in seriatim.

5.. The second respondent is a scavenger employed by the Municipality. There is no evidence to show the salary drawn by her. In the counter-affidavit filed by the Official Receiver in the trial court, he has stated that her salary was Rs.500 per month. That is seen from the judgment of the lower appellate court in which he had summarised the pleadings of rival sides. But, I would like to make it clear that mere pleading by the Official Receiver that the second respondent was drawing more than Rs.500 would not amount to proof of the same. The respondents have claimed the benefits of Sec.60(c) of C.P.C. and while so, the respondents have countered it by saying that the second respondent was not ? drawing more than Rs.500. The very fact that the respondents claim the benefits of Sec.60(c) of C.P.C. would amount to denial of the same. While so, the duty is cast upon the Official Receiver to prove the fact alleged by him in his counter. But no evidence was let in and this claim that the second respondent was getting a salary of more than Rs.500 remains unsubstantiated. Since on facts I find that this claim of Official Receiver was not proved, the submission on the basis of this fact which was not proved cannot stand.

6. Mr.Jagadeesan would reply upon Smt.Gita Mitra v. Hemanta Kumar Mitra, A.I.R. 1982 Cal. 336 in support of this submission that if the salary was more than Rs.400 or Rs.500 per month, the person who receives this salary cannot be classified as a labourer within the purview of Clause (h) of Sec.60, C.P.C. The cou