HANS RAJ Vs. RATTAN CHAND

JUDGEMENT

(1.) This is an appeal by a certificate against a judgment of a Division Bench of the High Court at Chandigarh in Letters Patent Appeal No. 212 of 1961. The High Court allowed the appeal on the ground that the application out of which it arose was incompetent as barred by limitation and, in our opinion, it did so correctly. The short question before us is, whether the application leading to this appeal was one under S. 68 of the Provincial Insolvency Act, and as such having been made beyond the period of 21 days from the date of the act of the receiver complained of, was covered by the proviso to that section In substance, the argument on behalf of the appellant was that the application was one under S. 4 of the Act in which there is no mention of any period of limitation.

(2.) The facts necessary for the disposal of this appeal are as follows:- Brijlal and Hans Raj were two brothers. On an application having been made by the creditors of Brij Lal in the year 1949, the insolvency Judge, Barnala adjudicated him as an insolvent, on 23rd November 1954. Two day thereafter, one Mohinder Lal was appointed as a receiver in insolvency by the order of the Court and he was directed to take possession of the property of the insolvent. On 26th and 27th November 1954 the receiver took possession of various properties of the insolvent and attached some urban property and agricultural land which are the subject-matter of the present litigation Hans Raj filed an objection application on 21st December 1954 alleging that the property detailed therein belonged to him and was exclusively in his possession. He prayed for release of the property from attachment and restoration of possession to him. The receiver pleaded that he had taken possession thereafter at the instance of two creditors. The insolvency Judge framed two issues namely, (1) Is the objector owner of the suit property and in possession thereof and is it accordingly not liable to be attached by the receiver and (2) whether the objection petition was time-barred The learned Judge decided the first issue against the objector but held that the application was not covered by S. 68 of the Act. In appeal, the District Judge differed from both the findings. He held that there had been no partition of the joint Hindu family of the insolvent and his brother, but, on the point of limitation he found against the objector. In the result, he accepted the appeal and dismissed the objection petition. Hans Raj:went up in Second Appeal to the Punjab High Court. The learned single Judge of the High Court came to the conclusion that the property in dispute must be deemed to be the separate property of Hans Raj and held that the application was within time. Rattan Lal who replaced the original receiver on the latter's death filed a Letters Patent Appeal to the High Court. The High Court, as already noted, held that the application of Hans Raj was not within time resulting in the dismissal of the objection petition.

(3.) We must first consider the nature of the application made by the objector and then find out whether it is covered by S. 68 of the Act. Section 4 of the Act on which great reliance was placed by learned counsel for the appellant is one of the three sections in Part I of the Act, i.e., Ss. 3, 4 and 5. Section 3 lays down that the District Courts shall be the Courts having jurisdiction under the Act. Section 4 defines the Jurisdiction of the Court and runs as follows: