The Official Receiver cannot appropriate the sale proceeds accruing from the sale of the sons' shares once the power of sale is destroyed by the existing attachment.

Madhavan Nair, J.

1. The Official Receiver of Coimbatore is the appellant. One Arunachalam Chettiar obtained a money decree in O.S. 206 of 1926 against one Krishnasami Goundan. The joint family properties of the judgment-debtor and his three sons had been attached before judgment. These were proclaimed for sale in execution of the decree. In the meanwhile, Krishnasami Goundan was declared insolvent and the Official Receiver and the judgment-debtor, the insolvent, applied by E.A 15 of 1928 and E.A. 14 of 1928 for stopping of the sale in execution. The decree-holder opposed these applications and they were dismissed; but the Subordinate Judge directed that the proceeds of the sale in execution should be sent to the Official Receiver for distribution amongst the general body of the. creditors of the insolvent. Accordingly,, a sum of Rs. 5,177-11-0 was sent to the Official Receiver.

2. A holder of another decree against Krishnasami Goundan applied for a rateable distribution of the amount sent to the Official Receiver and an order was passed on that application, E.A. 256 of 1928, asking him to apply for the transfer of the amount sent to the Official Receiver to the execution Court. Arunachalam Chettiar, the decree-holder, in O.S. 206 of 1926 also applied by a memo for three-fourths of the amount being sent for on the ground that the insolvents properties alone were vested in the Official Receiver and that he was entitled to the shares of the insolvents three sons in the amount. E.A. 256 of 1928 was dismissed owing to the absence of the petitioner and his vakil. In response to the order of the Court on the respondents application, the Official Receiver sent back the money, that is, three-fourths of the amount to the execution Court and presented the application, E.A. 379 of 1928, out of which this C.M.S. A. arises praying that Arunachalam Chettiar, the decree-holder in O.S. 206 of 1926, must not be paid any portion of the amount and that the sum should enure to the benefit of the general body of the creditors of Krishna-swami Goundan.

3. The question for consideration is whether this three-fourths of the amount should go to the decree-holder in O.S. 206 of 1926, the respondent in this Court, or to the general body of Krishnaswami Goundans creditors. The Subordinate Judge held that the decree-holder was bound by the order passed on E. As. 14 and 15 of 1928, as he failed to prosecute an appeal which he filed against that order and further, that the money must go to the general body of creditors because the attachment effected in execution was an attachment of the fathers right to dispose of his sons shares to pay his own debts "not being immoral or illegal" and that the same right vested in the Official Receiver on the adjudication of the judgment-debtor as insolvent. He therefore ordered that the amount should be sent back to the Official Receiver. On appeal, the learned District Judge set aside the order of the Subordinate Judge. This G. M. S.A. has been filed by the Official Receiver against the order of the learned District Judge.

4. The first question for decision is whether the order passed by the Subordinate Judge on E. As. 14 and 15 of 1928 bars the right of the respondent to apply for the return of the fund in question. The appellant contends that, since it was decided that the money realized in execution should be sent to the Official Receiver, it is no longer open to the respondent to ask for the return of that money. He argues that the order operates as a bar on the ground of constructive res judicata. In those applications the petitioners relied on Section 52, Provincial Insolvency Act, to stop the sale, but as the property was only attached and had not come into the possession of the Court the applications were dismissed; and the Court made a direction that the proceeds of the sale should be sent to the Official Receiver for distribution amongst the creditors. The decree-holder, the respondent, preferred an appeal