(1.) THIS execution second appeal is directed against an order, dated 23rd April, 1965, of the District Judge, Hoshiarpur. It arises out of these facts: Firm Balak Ram Mehar Chand were a contractual partnership, Mukhi Ram Thakar Dass and Amrit Lal were its partners. They were adjudicated insolvents on 24th July, 1959, by the insolvency Judge, Hoshiarpur, Ramesh Chand sood was appointed as the official receiver. On 21st May, 1963, Durga Dass, one of the creditors, made an application in the insolvency Court alleging that the official receiver was amiss in the discharge of his functions in as much as he had failed to take possession of all the assets of the insolvents. It was further averred that the insolvents had a big building at Hoshiarpur and that the official receiver should be directed to sell that property for the benefit of the creditors.
(2.) THE insolvents resisted the application and pleaded that they had no assets excepting the main residential building which was exempt from sale under Section 60 (1) (ccc) of the Code of Civil Procedure. The only point which was argued before the lower appellate Court on behalf of the creditors was, that one shop and one chobara above it, belonging to the insolvents though attached to the residential building of the insolvents, were not in their occupation, and, as such were not immune from attachment and sale. The lower Appellate Court found that the shop was in the occupation of tenants named. Lalji Ram Dass, under the insolvents. It, therefore held that it was not in the occupation of debtors, and as such, was available for liquidating the debts of the insolvents. With regard to the chobara, it was held in agreement with the Court of first instance, that though it was in the occupation of one Lachhman Dass yet the latter's occupation being that of a licensee must be deemed to be the occupation of the insolvents. It, therefore, upheld the objection of the insolvents that the chobara was exempt from attachment and sale under Section 60 (1) (ccc) of the Code of Civil Procedure, Aggrieved by that judgment, the creditor has come in Second appeal to this Court.
(3.) CROSS-OBJECTIONS were also filed by the respondent that by a previous judgment dated February 13, 1959, the insolvency Court had held that the shop in dispute was also exempt from attachment and sale under Section 60 (1) (ccc), and that the previous judgment being a judgment in rem, operates as judicata.