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Judgment
M. Chockalingam, J.—Challenge is made to an order of the learned Single Judge made in Application No. 461 of 2004 in I. P. No. 79 of
1972.
The appellant herein sought for a direction to the Official Assignee to execute the sale deed in her favour. The facts under which the instant
application was made can be stated thus:
One Munirathinam Naidu was declared as an Insolvent by the Court in I. P. No. 79 of 1972. He was having a vast extent of land in Navalar
Street, Rani Anna Nagar, Arumbakkam, Chennai. The lands were occupied by various persons and if the lands were disposed of to those
persons, then he would have got surplus amount and hence he could not have been declared as insolvent. When the matter came up before the
Division Bench of this Court in O. S. A. Nos. 28 and 29 of 1992, an order came to be passed on 22. 4. 1992, appointing Advocate
Commissioners with a direction that the land in question was to be inspected by them and they should file their reports. Accordingly, the reports
were filed on 29. 10. 1992. Based on the report of the Advocate Commissioners, the Official Assignee also filed two reports before the court. The
date of the earlier report could not be ascertained and the latter report was filed on 27. 7. 1994. The Division Bench directed the Official Assignee
to execute the sale deed in favour of the settlors. The name of the applicant Rajeswari was actually found place in the report of the Official
Assignee, dated 27. 07. 1994. Hence the application was made seeking direction to the Official Assignee to execute the sale deed in her favour.
The application was contested to by the Official Assignee, stating that it is true, the name of the applicant was found in the report, dated 27. 07.
1994, but direction could not be given for the simple reason that originally, Advocate Commissioners were appointed and on inspection, they filed
the reports. They have categorically pointed out that the applicant was not in occupation. It is true, demand notice was sent and there was a fraud
played by the assistance attached to the office of the Official Assignee in affixing the facsimile signature and using the same, demand has been made
and apart from that, the applicant was also not a party, who is actually in occupation and hence the application was to be dismissed.
The learned Single Judge posed question as to whether the applicant was entitled to have the relief for a direction to the Official Assignee to
execute the sale deed. On enquiry, the learned Single Judge has found the answer in negative and has dismissed the application and hence this
appeal has arisen.
Advancing arguments on behalf of the appellant, the learned Counsel relying on the Bench decision of this Court in O. S. A. No. 29 of 1992,
has stated that the Official Assignee has filed the report and therefore, on the basis of the report, there should be a direction given to the Official
Assignee to execute the sale deed in favour of the respective parties; that the name of the appellant was found place in the original report of the
Official Assignee, dated 27. 7. 1994; that originally, an order came to be passed in A. No. 461 of 2004 by the learned Single Judge with an
observation that the fraud played in the Office of the Official Assignee gives him a cause of action to have the Bench order reviewed and it is open
to them to take appropriate steps to have the Bench order reviewed; that once there was a direction to take necessary steps before the Division
Bench, it was not done so; and that on the contrary, they have got a second report and also filed the same before the Court and would state that
the report of the Advocate Commissioner did not contain the name of the appellant and therefore, the relief could not be granted.
The learned Counsel for the appellant would further add that originally, when there was a report filed by the Official Assignee and it contained
the name of the appellant that she is in occupation, there was no further necessity arose to delete her name or to raise any objection; that originally,
there was a civil suit filed by one Etti in O. S. No. 8303 of 1995 on the file of the City Civil Court, Madras, seeking declaration in respect of the
same property, where the Official Assignee and the appellant herein were also shown as parties; that the Official Assignee has given evidence in
favour of the appellant herein; that the suit was dismissed; that apart from that, the appellant also filed an another suit against Etti, seeking
declaration, where also the Official Assignee was shown as party; that the suit was ended in favour of the appellant and the Civil court has also
adjudicated upon in favour of the appellant and under these circumstances, the contention that the report of the Commissioners did not contain the
name of the appellant as occupant cannot be countenanced; that the learned Single Judge has not adverted to attention of any of these aspects, but
has passed the order, denying the relief and under these circumstances, the appeal has got to be allowed, giving direction to the Official Assignee
to execute the sale deed in favour of the appellant herein and setting aside the order of the learned Single Judge.
The Court heard the learned Senior Counsel, representing the Official Assignee, on the above contentions.
The Court has paid its anxious consideration on the submissions made.
It is not in controversy that in O. S. A. Nos. 28 and 29 of 1992, the Division Bench has passed an order, appointed Advocate Commissioners
and called for the report as to the names of the occupants in the property in question. Accordingly, the reports were filed. Following the same, the
Official Assignee has also filed the report. It is also not in controversy that the name of the appellant/applicant Rajeswari was also found in the
report prepared and filed by the Official Assignee. There was a direction issued by the Division Bench to the Official Assignee to receive the sale
consideration and execute the sale deed.
At this juncture, the grievance ventilated by the appellant before the learned Single Judge was that despite the fact that a direction was issued
by the Divison Bench and payments, as per the demand, were also made by the appellant, the Official Assignee has not executed the sale deed.
The learned Single Judge, on enquiry, has dismissed the application, which in the considered opinion of the Court is rightly too. It is not in
controversy that there was a direction issued by this Court for executing the sale deed. It is pertinent to point out that the direction issued to the
Official Assignee was to execute the sale deed only to those persons, who are actually in occupation. The learned Counsel for the appellant relied
on two cases, one filed by Etti in O. S. No. 8303 of 1995 and also the another suit filed by the appellant/applicant against the said Etti. It is
pertinent to point out that both the decisions have no relevancy at all for the simple reason that the suits were actually filed inter-se between the two
parties, namely the appellant herein and Etti in respect of the property in question. In the instant case, no sale deed was actually given and hence no
title was available with the appellant herein.
The learned Senior Counsel for the respondent took the Court to the evidence of the Official Assignee before the City Civil Court in O. S. No.
8303 of 1995, where he has categorically deposed that the applicant Rajeswari was actually not in occupation of any portion of the property and
she was an utter stranger. It remains to be stated that in the Commissioners report filed before the Division Bench, the name of the
appellant/applicant was not at all found and it was the Commissioners who made the inspection pursuant to the order of this Court and have filed
the reports. Hence the contention put forth by the learned Counsel for the appellant that the reports of the Commissioners could not be taken as
conclusive proof, though attractive, cannot be countenanced in law. In order to find out the actual occupants in the property for the purpose of
execution of sale deed on payment of consideration, the Commissioner of Court was appointed and he filed the report. In the report, the name of
the appellant/applicant was not found. Subsequently, the same was followed in the first report of the Official Assignee.
Now, the contention put forth by the learned Counsel for the Official Assignee was that some fraud has been played by the assistance of the
Official Assignee by using the facsimile signature and the demand was made on the appellant, pursuant to which she has also made payment and
thus, the entire things have taken place based on the fraud. Once the Commissioners'' report did not whisper that the appellant was also a party,
who is actually in occupation, the report of the Official Assignee, which came to be filed latter, could not have contained the name of the appellant.
Even if at all, it contained so, it could not be a correct report. Under these circumstances, explaining everything, the Official Assignee has filed the
second report and the same was perused by the learned Single Judge and the learned Single Judge has taken a correct view that the applicant was
not entitled to the relief, since her name was not found. It remains to be stated that original Bench order was to the effect that the sale deed should
be executed only to the persons, who are actually in occupation. In the absence of proof therefor, the Court is of the considered opinion that the
order of the learned Single Judge has got to be sustained.
In the result, the order of the learned Single Judge is sustained. The respondent is directed to refund the amount to the appellants. This Original
side appeal fails and the same is dismissed. No costs. Consequently, the connected CMP is also dismissed.