VENKATA REDDI AND OTHERS versus POTHI REDDI

Citation: [1963] SUPP. 2 S.C.R. 616 · Decided: 30-11-1962 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

1962 
}.,'opnnhtr 30, 
616 SUPREME COURT REPORTS [1963] SUPP. 
VENKATA REDDI AND OTHERS 
'/}, 
POTH! REDD! 
(S.J. IMAM, K. SuBBA RA.o, N. RA.JA.GOPALA 
AYYANGAR andJ. R. MUDHOLKAR, JJ.) 
P1·eliminary Decree-Partition suit-Father'• iflBolvency-
Suit chalknging Official Receivtr's sak of sons' share-New law 
declaring such right but made subject to previous final decision 
of co11rt-l'reliminary decree, if a "final ilfcision"-Pmvincial 
In.solvency (Amendment) Act, 1948 (2/i of 19·18), B.2-Pr011in-
cial lnsofrency Act, 1920 (5 of 1920), •. 2SA. 
The appellants' father was adjudicated an insolvent and 
the Official Receiver put up for sale the property belonging to 
the undivided family including the two-thirds share of the 
appellants. On February I, 1943, the appellants instituted a 
suit for the partition c.f the joint family property impleading 
therein the respondent, the purchaser of the property, and 
claimed that on their father's adjudication only his share vested 
in the Ofltcial Receiver and that the laifoY.had no right to sell 
their two-thirds share. The trial court accepted this contention 
and passed a preliminary decree for partition in favour of the 
appellants. The decree was confirmed by the High Court of 
Madras on November 18, 1946. On an application made by 
the appellants, a final decree was passed ex-parle on August 17, 
1946, but it was set aside at the instance of the respomlent. In 
the meantime s. 23A of the Provincial Insolvency Act, 1920, 
came into force in 1948, under which the disposing power of 
the father o,·er the interest of his undivided sons also vested in 
the Official Receiver. By the first· proviso to the section it was 
provided "that nothing in this section shall affect any .. transfer 
of the prop<rty of the insolvent by ...... a Receiver .... made 
before 
the commencement 
of the 
Provincial Insolvency 
(Amendment) Act, 1948, which hat been the subject of a final 
decision by a competent court". The District Munsif held that the 
Amcndin~ Act did not affect the preliminary decree and restored 
the ex-parte final decree. The question was whether the 
preliminary decree for partition which wa\ affirmed finally in 
second appeal by the High Court was a final decision within 
s. 28A of the Act. 
Held, that a preliminary decree passed, whether it is in a 
mortgage suit or a partition suit, is not ~ tent<1.tive d~crer.: but 
.( 
2 S.C.R. 
SUPREME COURT REPORTS 
617 
must 1 in so far as the matters dealt with by it are concernccl, 
he regarded ag e1nhoc:lylng the final 
clecL~ion of the Court 
pao;;si11g that decree within the n1eaning of the fir~t ptoviso lo 
s. 28A of the Provincial Insolvency Act, 1920. 
A final decision meam a decision which would operate as 
re• jurl;cala between the parties if it is not sought to be modified 
or reversed by preferring an appeal or a 'revision or a review 
application as is permitted by the Code of Civil Procedure,1903. 
In re A D1·btor, [19291 2 Ch.146, considered. 
C1v1L APPET.LATE JuRJSDICTION : Civil Appeal 
No. 199 of 1960. 
Appeal by special leave from the judgment 
and decree dated December I, 1955, of the Madras 
High Court in second Appeal No. 73fi of Hlii:l. 
R. Gan<1p11thy Iyer, R. 'l'kiagamjrm and G. 
Uopaliikrishruin, for the appellants. 
V. S. Prasltar, A. S. C!tatMrvedi and [(, It. 
Gl;au.dhari, for the respondent. 
1962. November 30. 
The Judgment of the 
Court was delivered by 
MuDHOLKAR, J. - Only one question arises for 
consideration in this appeal by special leave and that 
is the meaning to be given to the expression 'final 
decision' occurring in the first proviso to s. 28 A of 
the Provincial Insolvency Act, l!l20 (Act No. 5 or 
1920), introduced by Act No. 25 of 1948. 
For appreciating the argument advanced before 
us a few facts have to be stated. Venkata Rl'<ldy, 
the father of the appellants, was adjudicated an 
insolvent by the Sub-Court, Salem in I. P. No. 73 of 
1935. 
At that time only the appellants l and 2 were 
born while the third appellant was born later. The 
fathl!r's one·third share was put up for auction by the 
Official 
Receiver 
ancl 
was 
purchased by one 
1961 
V1nkat4 Reddi 
. y, 
Pot/Ji Rttldi 
Mudho//rtJr, J. 
1962 
i"nikata Rfddi 
v. 
Pot/ii Rtrldi 
Afrtdhn!kar, J, 
618 SUPREME COURT REPORTS [1963] SUPP. 
Karuppan Pillai for Rs. 80/ ·. The Official Receiver 
then put up for auction the two·thirds share belonging 
to appellants l and 2 on July ~7, 19::16, which was 
purchased by the same person

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