V.V.M.K.R Mothiah Ch... v. Doraiswami Pillai Al...

This appeal arises out of an application made by a petitioning creditor in 1. P. No. 29 of 1910 to set aside the sale of the insolvent's properties held by the Official Receiver. One Solamalai Asari was adjudged an insolvent on 12th July, 1911 and on 11th November, 1912 nine items of his property were sold to one Virabhadra Konan. At the time of the sale the Court had not passed an order vesting the properties in the Official Receiver. Accordingly the appellant put in an application M. P. No. 222 of 1919 to declare the sale already held invalid and to order the Official Receiver to resell the properties after the Court had passed the vesting order. The learned District Munsif agreeing with the contention of the appellant declared that the sale was void and passed an order vesting the properties in the Official Receiver and directed him to sell the properties again. In appeal it was held that the application of the petitioning creditor was barred by limitation. But the High Court set aside this decision and remanded the case again to the District Court for disposal; the decision by the District Judge is the subject matter of the appeal before us.

The learned District Judge has held that though the sale by the Official Receiver was void as no vesting order had been passed at that time, still when the District Munsif made the vesting order which he did in M. P, No. 222 of 1919 the provisions of Sect. 43 of the Transfer of Property Act became applicable and the sale which he held at first became valid. Sect. 43 says:

“Where a person erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.”

It has been held by this Court in basava Sankaran v. Anjaneyulu that in circumstances like the present the vesting order has retrospective effect and the sale held by the Official Receiver when he was not authorised to do so becomes effective as a result of the subsequent vesting order passed by the Court by virtue of Sect. 43 of the Transfer of Property Act; and this is, what has happened in this case. We therefore agree with the District Judge that the learned District Munsif had no power to order a resale as by the vesting order he passed he had cured the defect in the original sale.

It is argued that since the District Munsif has declared the original sale void by his order, Sect. 43 becomes inapplicable. We cannot agree. The sale was already void because the Official Receiver had no power to sell owing to the absence of the vesting order. We think that the subsequent vesting order makes the first sale valid.

We dismiss the appeal with costs.

N. R. R.Appeal dismissed.