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TMI Blog1942 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... himself was not made a party. On 17th February, 1933, the adjudication was annulled and the insolvent's properties were revested in the insolvent by order of Court. The suit, however, proceeded without Venkataramaiah being added as a party, and a preliminary decree was passed on 25th Sep., 1933 followed by a final decree on 24th November, 1934. E.P. No. 9 of 1936 was then filed by the decree-holder for the execution of the decree by sale of the mortgaged property. On 25th September, 1936, while that execution petition was pending, he put in E.A. No. 339 of 1936 for the joinder of Venkataramaiah in the execution proceedings, but the application was, rightly in our opinion, dismissed on 7th April, 1937. This was obviously an attempt to cure the defect due to the omission to bring Venkataramaiah on the record in the suit. As it was unsuccessful, the decree holder made another attempt to get rid of the objection of Venkataramaiah that, not being a party to the suit, the decree did not bind him. E.A. No. 293 of 1938 was accordingly filed for the removal of the obstruction caused by Venkataramaiah to the receiver appointed in the suit, taking possession of 3.14 1/2 acres out of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de, and no right of appeal is recognised by any other provision of the Code. But an appeal does lie if the Court purports to make the order under a provision of law wrongly assumed by it to be applicable though it was really not applicable provided of course that an appeal is ordinarily permitted against orders rightly made under that provision. (See Abdul Rahiman Saheb v. Ganapathi Bhatta (1920) 10 M.L.J. 305 : L.R. 23 Mad. 517 Latchmanan Chetty v. Ramanathan Chetty (1905) 14 M.L.J. 436 : I.L.R. 28 Mad. 296 (P.C.) Muthiah Chettiar v. Govinddoss Krishnadoss AIR1921Mad599 . In the present case, the learned Subordinate Judge has in effect held that the appellants derive their right under a person who had been properly represented by the Official Receiver, who had been made a party to the suit, in other words, that they are the representatives of one of the parties. |Except in this view the order could not have been made against them, as they were strangers to the decree. Having invited the Court to pass the order on the footing that the appellants were the representatives of a party to the suit, or of one who was sufficiently represented by a party, the respondents cannot now be perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudged insolvents pending execution of a money decree and after an attachment had been effected, but before the sale. The Official Assignee was substituted in place of the judgment-debtors after a notice which only called upon him to show cause why he should not be substituted, but not why the decree should not be executed against him. The Official Assignee took no steps to intervene in the execution proceedings with the result that the property which had been attached was sold and the respondent was declared the purchaser. The contest for possession was between him and a purchaser from the Official Assignee, who sold the property long afterwards, but with the leave of the insolvency Court. The Privy Council held that the Official Assignee's sale conveyed title to the latter, while the former got nothing under the court-sale. The decision was rested on three grounds, two of which are material for the present purpose. They are : (1) that the Official Assignee was not bound by the court-sale, as no proper steps had been taken to bring him before the Court and obtain an order binding him on; and (2) that the judgment-debtors had at the time of the sale no right, title or intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit, to set aside the foreclosure decree and for redemption of the mortgage. The Privy Council held that the entire proceedings taken with Amulya only on the record were ineffective to bind the equity of redemption vested in the receiver. Their Lordships pointed out that the final decree passed in the suit, even after hearing the objections of the receiver who was heard on the occasion, did not constitute res judicata against him as it was pronounced in a suit to which he had not been made a party and accordingly decreed the suit in his favour. Their Lordships further repelled the contention that the reservation of the right of a secured creditor under Section 28(2) of the Provincial Insolvency Act to realise or otherwise deal with the security notwithstanding the insolvency of the mortgagor made no difference, as it did not in the least imply that an action by him may proceed in the absence of the person to whom the equity of redemption had been assigned by the operation of law. 8. The position then is that if a creditor seeks to sell the property of his judgment debtor after his insolvency, whether the debt sued on is a simple one or is secured by a mortgage, he must either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the property by reason of the court sale. This contention was overruled on the ground that the devolution of interest pendente lite did not prevent the Court from passing a decree in favour of the plaintiffs. It was pointed out that the person who acquired an interest in the subject-matter of the litigation pendente lite is entitled to apply to the Court for leave to continue the suit, though it was not obligatory upon him to do so. But if he does not ask for leave, he takes the risk of the suit not being properly conducted by the plaintiffs on record, and yet the decision would be binding upon him, as held in Moti Lal v. Karrabuldin I.L.R. (1897) 25 Cal. 179 (P.C.). The last mentioned decision will, however be found on examination to go no further than to extend the principle of the doctrine of Us pendens to involuntary alienations which do not strictly fall within the language of Section 52 of the Transfer of Property Act. The Calcutta decision does not therefore furnish a parallel to a case such as the one before us to which the doctrine of Us pendens is not applicable, as conceded by the respondents' learned advocate. In the next case cited by Mr. Govindarajachari, Vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appeal. That they did not do, and there being no specific or positive provision by which the appeal or proceeding can be said to have abated on the resignation or dismissal even of a person holding the representative character, it is difficult to agree with the contention put forward on behalf of the appellants and hold that on the mere resignation by a trustee being accepted the whole proceeding tends to the same position as in the case of the death of a party. 11. Although the language here employed is general, it must of course be read in conjunction with the facts of the case which show that the devasthanam was held to have been properly represented in the litigation by a de facto trustee That a de facto trustee can maintain a suit in the name of the temple and for its benefit, if he is in actual possession and management of the temple and its properties is no longer open to question. See Mahadeo Prasad Singh v. Karia Bharthi (1935)68MLJ409 . In Ittuman Panikkar v. Narayana Bharatikal (1928) M.W.N. 746 a decree was passed by the trial Court in favour of a devaswom represented by a trustee. Shortly after the institution of the suit, there was an order of removal made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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