The court held that the learned single judge erred in passing the impugned order without notice to the appellant, who was one of the defendants in the suit. The court also held that the plaintiff/applicant/respondent was not entitled to the relief of sale of the immovable property at the initiation of the suit.

MISHRA, J.

1. In a proceeding in insolvency I.P. No. 58 of 1986 P.K. Pattabiraman since deceased and his wife P. Kantha were adjudged insolvents. They filed schedules of their properties as required under S. 24 of the Presidency Towns Insolvency Act, 1909 (hereinafter referred to as the Act) and included therein a list of immovable properties, including schedules A to D to the Judges Summons in Application No. 806 of 1993 in C.S. No. 760 of 1986 and the properties, accordingly, came out in the hands of the Official Assignee. C.S. No. 760 of 1986 has been filed, however by the plaintiff/applicant respondent against eight persons including Pattabiraman and P. Kantha and the appellant herein for recovery of Rs. 1 crore and odd and claiming that properties mentioned in the schedules A to D to the Judges Summons were security for the advance made by them to a firm of which Pattabiraman and Kantha were partners. Summons have been issued in the suit. Some of the defendants have already been served and some of them are yet to be served with the summons. None of them, however, has opposed and filed the written statement in the suit. At such a stage of the suit, however, the plaintiff bank filed Application No. 806 of 1993 and brought into the proceeding the Official Assignee to represent the insolvents and stated that Kantha had deposited her title deeds with the bank in respect of the immovable properties and that it was entitled to realise its claims from the properties which were mortgaged to it by Kantha and accordingly appropriate the sale proceeds towards the suit claim. They sought a direction, accordingly for the sale of the properties described in the schedules A to D to the Judges Summons. A learned single judge of this Court has disposed of the said Application by a summary order, which reads as follows:—

“The Official Assignee has been added as party-defendant No. 9 in the suit. The entire estate is under his control and management. The Official Assignee has no objection for the sale of the schedule B and C properties which is standing in the name of the 1st respondent Mrs. P. Kantha in this application. Hence, the Official Assignee is permitted to sell the B and C schedule items through Alwin and Company, Madras Auctioneers, as per the usual procedure. The auctioneers are directed to sell the properties, after following the formalities within six weeks from today.”

The above order has been passed without notice to the appellant, who has been one of the defendants in the suit.

2. It is not stated however in the impugned order why when the plaintiff/applicant respondent desired the sale of the properties mentioned in the schedules A to D to the Judges Summons, the learned single judge ordered for the sale of the properties mentioned in the schedules B and C only except that the Official Assignee raised no objection for the sale of the said properties. It has, however, been brought to our notice by the learned Official Assignee that while he had clear information that properties mentioned in the Schedules B and C belonged to the insolvent P. Kantha it was not sure in respect of the properties mentioned in the Schedules A and D. It was possible, therefore, that in the properties mentioned in the Schedules A and D some other defendant had interest and without notice to such other defendant, it was not possible to accept the case of the plaintiff/applicant/respondent that the charge of the debt of P. Kantha extended to the entire properties described in the Schedules A to D. Any properties consequent on order of adjudication of properties belonging to the insolvents vest in the Official Assignee and the Official Assignee accordingly is required to proceed with the division of such properties amongst the creditors. No creditors to whom the insolvent is indebted in respect of any debt provable in insolvency during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of