1. Appellant in this case sought to execute a decree assigned to him by a decree-holder, who became insolvent within three months of the assignment. The District Munsif to whom the application for execution was made issued notice to the Official Receiver, and on the latter's objection declared the assignment to be fraudulent and void under Section 37 of the Provincial Insolvency Act and refused to allow execution. The Subordinate Judge on appeal took the same view. Hence this second appeal. Whatever discretion may still rest in the Court to refuse execution, provided the conditions of Section 1, O. 21, R. 16 of the CPC are complied with, and it has been held in Asad Ali Molla v. Haider Ali(1) that there is none, it is clear that the Court can only take into consideration objections which may be put forward by the persons to whom notice has to be given, that is, the transferor and the judgment-debtor. There is no question of the judgment-debtor here: and the present objection is not one which could be taken by the insolvent transferor. It has not been denied that this transfer was for consideration, and was intended to take effect. The objection put forward by the Official Receiver is not as representing the transferor, bub the latter's creditors.
2. Mr. Madheven Nair pointed out that the Official Receiver has himself applied for execution of the decree: and that on this ground his objection should have been heard by the District Munsif.
3. This would be so, if the assignment were wholly void ab initio, but although the word ‘void’ is used in Section 37 of the Provincial Insolvency Act, it is clear from the context that it only means voidable. Otherwise it would be unnecessary to provide for an order of the Court annulling the transaction: vide also Official Receiver of Trichinopoly v. Somasundaram Chettiar(2). The Official Receiver has, therefore, no status to execute the decree until be has obtained an order from the District Court under S. 37. This is his proper course, and if he applies to the District Court for such an order, it will be open to the District Court to grant an interim stay of execution of this decree. We must set aside the orders of the lower Courts and direct the District Munsif to restore appellant's execution petition to file and dispose of it according to law. All costs of both parties in this proceeding will be paid out of the insolvent's estate.
S.N/R.K
4. Appeal allowed.