BISHAMBHAR NATH Vs. JANKI BALLABH TRIPATHI

JUDGEMENT

(1.) This appeal arises out of a suit, which was originally instituted by Shri Bishambhar Nath Khazanchi, against Shri Janki Ballabh Tripathi, the Official Receiver of Agra defendant 1 who will hereafter be referred to as the Official Receiver, representing the estate of two insolvents. Khwaj Bux and Riazuddin, who will hereafter be referred to as the insolvents, Nawal Kishore (defendant 2), a creditor of the insolvents, and Khaliluddin (defendant 3), a tenant of the insolvents' property. The suit was for obtaining a declaration that a certain building consisting of 17 shops and a hall and printing press known as "Abdul Ulai Electric Press", established in the building, was not liable to attachment by the Official Receiver as the property of the insolvents. The property admittedly at one time belonged to the insolvents; but, in the year 1925, they mortgaged the same to Ram Charan and subsequently, on 28-7-1928, they mortgaged it to the plaintiff, Bishambhar Nath Khazanchi. Later on, in 1932, the plaintiff instituted a suit for sale on the basis of his mortgage and in due course, obtained a decree for sale. On 28-2-1934, Nawal Kishore, who had obtained a simple money decree against the insolvents attached the printing press in execution of his decree. In the meantime, on 19-8-1934, the insolvents sold the property to the plaintiff, who leased it out to Khaliluddin on a monthly rental of Rs. 333-5-4. On 10-5-1934, the plaintiff filed an objection to the attachment of the printing press in execution of the decree of Nawal Kishore. The objection was allowed on 12-7-1934, and the printing press was released from attachment.

(2.) In the meanwhile on 30-5-1934 Nawal Kishore made an application under Section 9, Provincial Insolvency Act (V [5] of 1920) praying that Khwaj Bux and Eiazuddin, his debtors, be adjudged insolvents. On the same date Nawal Kishore made an application for appointment of an interim receiver under Section 20 of the Act. On 9-9-1934, the insolvency Court appointed the Official Receiver as an interim receiver. No direction was, however, given by the Court to the Official Receiver to take immediate possession of the debtors' property. The Official Receiver, however, attached the property, that is, the building along with the printing press, on 21-10-1934. Nawal Kishore, who was present at the time of attachment, identified the property as the property of the debtors. After attachment, the property was entrusted to the debtors. Some days later, on 2-11-1934, the debtors were adjudged insolvents.

(3.) Thereafter, on 8-11-1984, the plaintiff served a notice upon the Official Receiver through a lawyer asking him to release the property and saying :