BRIJ MOHAN LAL Vs. BAKSHI RAM

JUDGEMENT

(1.) THESE two appeals (S. A. Os. Nos. 17 and 18 of 1969) at the instance of the insolvent Brij Mohan Lal arise from a common order and involve common questions of law and facts and, therefore, we propose to decide both by a common order.

(2.) THE importance of the question of law involved and a further circumstance of the same being bereft of any authority directly bearing thereon, necessitated the hearing of these two appeals on a reference, by a Division Bench which, in turn, for the very reasons referred these appeals for decision by a larger Bench and that is how these are before us.

(3.) THE two propositions of law as formulated by the referring Bench, on the resolving of which depends the determination of the fate of these two appeals are-1. Whether an independent and well demarcated portion of a residential buildins used and occupied by a debtor for business purposes would be exempt from attachment and sale in terms of provisions of Section 60 (1) (ccc) of the Code of Civil Procedure and consequently exempt from vesting under Section 28 (2) of the Provincial Insolvency Act (V of 1920) -- hereinafter referred to as the Act; 2. As to whether or not a main residential house of an insolvent subject to a charge of debt would vest under Section 28 (2) of the Act in the insolvency Court. The only facts that are relevant to the aforesaid questions and which are not in dispute can be stated thus: Appellant Brij Mohan Lal was adjudicated insolvent. He applied to the insolvency Court for the exemption of his main residential house from vesting under Sub-section (2) of Section 28 of the Act in the said Court or the Receiver appointed by it. The insolvency Court as also the trial Court, whose order is under challenge in these appeals, found as a fact that the building in question, which consisted of four rooms on the ground floor, four rooms on the first floor and one room on the second floor was the main residential house of insolvent, of which the ground floor was exclusively used by him for carrying on his business and that the said building was under mortgage with the Punjab and Sind Bank Limited. Ambala City.