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2012 Supreme(Mad) 4920
IN THE HIGH COURT OF MADRAS
T. Mathivanan, J.
T. Krishnan - Appellant
Vs.
Leelavathiammal - Respondent
C.R.P. (NPD) No. 1175 of 2005 and C.M.P. No. 8261 of 2005
Decided On : 28-11-2012
For the Appellant :R. Margabandhu, Advocate.
For the Respondents:T.R. Rajaraman, Advocate.
Headnote:
Civil Procedure Code, 1908 – Order 21, Rule 66 – Provincial Insolvency Act – Order 10, Section 29 – Order of Sale – Memorandum of Civil Revision Petition is directed against the Order of Sale dated 15.6.2005 in Execution proceedings in E.P. No. 85 of 2003 in O.S. No. 256 of 2000 on the file of the learned District Munsif, Tiruvannamalai. – The Revision Petitioner herein is the Defendant/Judgment-debtor in the Suit in O.S. No. 256 of 2000, whereas the Respondent is the Plaintiff in the Suit. – The Respondent has obtained a Decree in the above said Suit in O.S. No. 256 of 2000. – Pursuant to the Decree, an Execution Petition was filed in E.P. No. 85 of 2003 for the attachment of property belonging to the Revision Petitioner. – The sale date was fixed on 15.6.2005 as contemplated under Order 21, Rule 66 of the Civil Procedure Code. – Only on that date, the Revision Petitioner had produced the Order dated 25.11.2002 and made in Insolvency Petition in I.P. No. 13 of 2002 passed under Order 10 of Provincial Insolvency Act and submitted that in pursuant to the Order passed in Insolvency Petition in I.P. No. 13 of 2002, the property which was sought to be attached was vested with the official Receiver and therefore, the Execution proceedings had to be stayed as per Section 29 of Provincial Insolvency Act. – That was rejected by the learned District Munsif, Tiruvannamalai. – Being aggrieved with the above said Order, the Judgment-debtor has preferred this Revision Petition. – Held, It is manifested from the records that a Decree was passed in the Suit in O.S. No. 256 of 2000 on 20.10.2000. It is obvious that neither a lien nor a charge was created over the Suit properly in the above said Decree. – Pursuant to the Decree dated 20.10.2000, the Respondent herein had filed the Execution Petition in E.P. No. 85 of 2003 to attach the property. – Therefore, on the date of filing of the Execution Petition, property was not attached. – It is also significant to note here that the Execution Petition was filed on 27.11.2003. But Revision Petitioner/Defendant was adjudicated as an Insolvent in pursuant to the Order dated 25.11.2002 and made in I.P. No. 13 of 2002 under Section 10 of Provincial Insolvency Act. – It may be relevant to note here that the property was not attached prior to the adjudication of the Petitioner as an Insolvent. – Only after filing the Execution Petition that is after 27.11.2003, the property was attached and ordered to be sold on 15.6.2005. – Now coming to the provisions of Section 29 of Provincial Insolvency Act as observed by this Court in the above cited Judgment, where a Judgment-debtor is adjudicated as and insolvent pending attachment of his property, such attachment will be ineffective so long as it is in the hands of the Receiver and if such adjudication is annulled property vests in the Judgment-debtor subject to such attachment. – Since the Revision Petitioner has been adjudicated as insolvent on 25.11.2002, the Order of Attachment is ineffective. – Therefore, there is no impediment in allowing the Revision Petition. – Civil Revision Petition Allowed
T. Mathivanan, J.
1. This Memorandum of Civil Revision Petition is directed against the Order of Sale dated 15.6.2005 in Execution proceedings in E.P. No. 85 of 2003 in O.S. No. 256 of 2000 on the file of the learned District Munsif, Tiruvannamalai. The Revision Petitioner herein is the Defendant/Judgment-debtor in the Suit in O.S. No. 256 of 2000, whereas the Respondent is the Plaintiff in the Suit. The Respondent has obtained a Decree in the above said Suit in O.S. No. 256 of 2000. Pursuant to the Decree, an Execution Petition was filed in E.P. No. 85 of 2003 for the attachment of property belonging to the Revision Petitioner. The sale date was fixed on 15.6.2005 as contemplated under Order 21, Rule 66 of the Civil Procedure Code. Only on that date, the Revision Petitioner had produced the Order dated 25.11.2002 and made in Insolvency Petition in I.P. No. 13 of 2002 passed under Order 10 of Provincial Insolvency Act and submitted that in pursuant to the Order passed in Insolvency Petition in I.P. No. 13 of 2002, the property which was sought to be attached was vested with the official Receiver and therefore, the Execution proceedings had to be stayed as per Section 29 of Provincial Insolvency Act. That was rejected by the learned District Munsif, Tiruvannamalai. Being aggrieved with the above said Order, the Judgment-debtor has preferred this Revision Petition.
2. When the Petition came up for hearing, Mr. Margabandhu, learned Counsel for the Petitioner has submitted that Section 29 of Provincial Insolvency Act is very clear that since the Judgment-debtor had been adjudicated as an insolvent in pursuant to the Order made in I.P. No. 13 of 2002, he had nothing to do with the property which was sought to be attached and therefore, the Execution proceedings ought to have been stayed. Without understanding the proposition of law under Section 29 of Provincial Insolvency Act, the Executing Court had deliberately refused to accept the Order, which was produced on behalf of the Petitioner and proceeded to fix the Sale date on 15.6.2005 which was erroneous and therefore liable to be set aside.
3. On the other hand, Mr. T.R. Rajaraman, learned Counsel for the Respondent/Decree-holder has argued that the Revision Petitioner was adjudicated as an insolvent only subsequent to the Decree passed in O.S. No. 256 of 2000 and therefore, the Order passed in I.P. No. 13 of 2002 would not bind up on the Respondent. Hence, the order fixing the sale date on 15.6.2005 passed by the Executing Court need not be disturbed and interfered with. In this connection, it is imperative on the part of this Court to refer the provisions of the Sections 28 & 29, as well as Section 10 of Provincial Insolvency Act.
4. Section 10, reads as follows:
"10. Conditions on which debtor may Petition.-- (1) A debtor shall not be entitled to present an insolvency Petition, unless he is unable to pay his debts, and--
(a) His debts amount to [five hundred rupees]; or
(b) He is under arrest or imprisonment in execution of the Decree of any Court for the payment of money; or
(c) An Order of Attachment in execution of such a Decree has been made, and subsisting, against his property.
(2) A debtor in respect of whom an Order of Adjudication [whether made under the Presidency-towns Provincial Insolvency Act, 1909 (Act 3 of 1909), or under this Act] has been annulled, owing to his failure to apply, or to prosecute an Application for his discharge, shall not be entitled to present an Insolvency Petition without the leave of the Court by which the order of adjudication was annulled. Such Court shall not grant leave unless it is satisfied either that the debtor was prevented by any reasonable cause from presenting or prosecuting his Application, as the case may be, or that the Petition is founded on facts substantially different from those contained in the Petition on which the Order of Adjudication was made."
5. Equally, it may be more relevant to refer the provisions of Section 28
