ORDER
1. This revision is filed against the orders dated 7.9.1994 in E.P.No.199 of 1990 in O.S. No. 242 of 1985 on the file of the Court of the II Additional Subordinate Judge, Kakinada.
2. The brief facts in giving rise to the filing of this revision are as follows:
The Decree Holder filed the suit on the basis of the mortgage deed executed by the J.Drs and obtained preliminary decree on 21.1.1985 and also obtained final decree on 22.2.1987. The decree holder filed the E.P. to bring the mortgage property to sale to realise the amount due under the said final decree in E.P.No.199 of 1990. It appears that the 1st J.Dr. filed I.P.No.1 of 1987 and he was adjudged as insolvent on 22.1.1990. The first J.Dr. filed a counter in the said E.P. stating that he was declared as insolvent and Official Receiver was appointed and the property vests with the Official Receiver and the mortgaged property was also shown in the schedule of debts filed in the Insolvency Petition No.1 of 1987 and hence he requested to dismiss the petition.
3. Judgment Debtors 2 to 4 filed a memo adopting the counter of the 1st J.Dr.
The Official Receiver also filed a counter stating that the 1st J.Dr. adjudged as insolvent and he was appointed as Official Receiver and the property vests with him and he let out the said property to one Venkateswara Rao on yearly rent of Rs.300/- and that he alone is entitled to sell the property but the decree holder cannot bring the property to sale.
4. The learned Subordinate Judge on considering the respective contentions of the parties held that as the decree holder is a secured creditor and he has not relinquished his security for the benefit of the general body of the creditors and in view of Section 28(6) of the Provincial Insolvency Act, the decree holder is entitled to bring the property to sale to realise the decretal amount and over-ruled the objections and the E.P. was posted for settlement of terms.
5. Now, the first J.Dr. filed this revision against the said orders. The learned Counsel for the petitioner submits that admittedly the 1st J.Dr. was adjudged as insolvent and receiver was appointed and he took possession of the property and let out the same to one Venkaieswara Rao, and the decree-holder ought to have impleaded the Official Receiver as one of the respondents in the E.P. and should have waited till the sale of the property by the Official Receiver and should have claimed the decretal amount from him and he ought not to have brought the property to sale to the detriment of the general body of the creditors and he relied on a decision in Kripa Nath v, Ganga Prasad, AIR 1962 All. 256 and also on a decision of the Bombay High Court, in Harbansingh v. Union of India, 1972 Bom. LR 561.
6. But, the learned counsel for the decree holder submits that though the Official Receiver is not impleaded as a respondent in Execution Proceedings, still notice was given to him intimating about the bringing of the property to sale and according to the J.Dr. the property vests with the Official Receiver and if that is the case the Official Receiver has to file the revision and the first J.Dr. has no locus standi to file the same. The learned
Counsel for the D.Hr. further submits that secured creditor can pursue his remedy without impleading the Official Receiver and he relied on a decision of the Lahore High Court in MT.Jailagi v. Alliance Bank, Simla, AIR 1930 Lah. 855(2).
7. It is not in dispute that the decree holder is a secured creditor and he obtained the final decree prior to the adjudication of the 1st J.Dr. as an insolvent and it is not the case of the J.Dr. or the Official Receiver that the decree holder has relinquished his secunty to the benefit of the general body of the creditors and on the other hand, he filed the E.P. pursuing the remedy to realise the decretal amount. The power of the secured creditor in realising the security is in no way affected by adjudication of the J.Dr. as insolvent and the Madras High Court in R.S.K. Chandrasekaran v. Official Receiver, AIR 1981 Mad. 235 held as follows:
” Section 28(6) of the Provincial Insolvency Act creates a fiction that, with regard to the rights of a secured creditor referred to in sub-section (6) of Section 28, neither sub-section (2) nor sub-section (7) of Section 28 should be deemed to have been in existence or enacted. In the instant case, the decree -holder being a secured creditor, there was no scope for applying either the provisions of vesting or the theory of relation back, so as to restrain or curtail the power of the secured creditor saved under sub-section (6) of Section 28.”
8. Even in the decision relied on by the learned Counsel for the petitioner it is observed that the secured creditor is entitled to bring the property for sale after impleading the Official Receiver in the Execution Proceedings, But, in this case, admittedly notice was issued to the Official Receiver and he filed his counter and the purpose of impleading the Official Receiver as one of respondents in Execution Proceedings is to bring it to his notice about bringing of the property to sale and if at all he wants to avail the equity of redemption he can do so and that the decree holder can bring the property to sale after giving notice to the Official Receiver. The other contention that the Official Receiver alone is entitled to bring
the property to sale cannot be accepted and on the other hand under sub-section (6) of Section 28 of the Provincial Insolvency Act, 1920 saves the power of the secured creditor to realise or otherwise deal with his security.
9. Even according to the J.Dr. and the Official Receiver, the property vests with the Official Receiver and if that is the case, the Official Receiver alone is entitled to file the revision against the impugned orders and the first J.Dr. has no locus standi and is not entitled to file the revision.
10. Therefore, in the light of the foregoing discussion, I am inclined to hold that there is no legal infirmity or impediment to the decree holder in bringing the property for sale after giving notice to the Official Receiver and there is no merit in the revision and revision fails and it is accordingly dismissed. No costs.
