The main legal point established in the judgment is the requirement to implead the Official Receiver in cases involving insolvency and the need for leave of the Court for execution proceedings against the property of the insolvent.

Krishnan Pandalai, J.

1. This is an appeal by the plaintiff (decree-holder) against the order of the District Judge of Coimbatore declaring on the application of the respondent (the Official Receiver of Coimbatore) that the decree is of no force as against the respondent and that the execution of it by sale of the properties of the insolvent (1st defendant) in the decree cannot proceed.

2. The facts are simple and undisputed. The appellant is a widow and she sued the 1st defendant, her husbands brother and the 2nd defendant, son of the 1st defendant, members of the joint family of her husband, for arrears of maintenance and for future maintenance claiming a charge for the latter on certain family properties specified in the plaint. Four days after the suit was registered, i.e., on the 22nd August, 1927, the 1st defendant was adjudicated insolvent. On the 21st November the plaintiffs vakil reported that the 1st defendant had been adjudicated and asked for time to consider what should be done. On the 12th December he submitted that he did not want to add the Official Receiver as a party and elected to proceed with the suit as it stood. On this no one seriously defended the suit and on the 15th November, 1928, a decree was passed as prayed making the future maintenance a charge on the B schedule property. The respondent (appellant herein) executed her decree and tried to bring the property charged to sale. Then the Official Receiver intervened and objected to the execution on the ground that he ought to have been impleaded and that the insolvents property had vested in him. The Subordinate Judge rejected this objection and ordered the execution to proceed. The learned District Judge in appeal reversed this order holding that the decree charging the property of the insolvent without impleading the Official Receiver is a nullity.

3. The order of the Lower Court so far as it dismissed the execution petition entirely is obviously wrong. The decree was obtained against two persons, the 1st defendant who subsequently was adjudged insolvent and the 2nd defendant, a minor who was defended by a guardian appointed by the Court and who has not been adjudicated an insolvent. Whatever may be the consequences of not impleading the Official Receiver who represented the estate of the 1st defendant, it can have no effect on the decree so far as it is against the 2nd defendant.

4. But the appellants learned advocate contends that the order is wrong even as against the decree against the 1st defendant. His contention is that even in a case in which the rights of property of a defendant are in question the insolvency of that defendant does not require that the Official Receiver in whom his property vests should be brought on the record. According to the argument it is immaterial whether he is impleaded or not and it is said that the Official Receiver is bound whether he is added or not. This is opposed to clear authority upon the subject. It may be conceded that this suit in which the plaintiff prayed for a charge for her future maintenance upon the B schedule property is one in which the right to immovable property was directly in question and that therefore the rule of lis pendens is within its proper limits applicable thereto. It is therefore said that by virtue of Order 22, Rule 10 of the Civil Procedure Code the Official Receiver who became the assignee by operation of law of the defendants property need be impleaded only with the leave of the Court which according to the argument implies that it is optional with the plaintiff to add the Receiver or not. The short answer to this argument is that the Official Receiver was not excluded by the refusal of any leave of the Court in this case. On the contrary the plaintiff after taking time to consider reported that she preferred to continue the suit without the Official Receiver. It therefore is incorrect to call in aid anything which may depend upon leave of the Court being refused. But the ide