CHHEDILALSIKARIA Vs. RAMJEE PRASAD

JUDGEMENT

(1.) - The petitioners objected to locking up of the premises by the receiver appointed in a proceeding under the Provincial Insolvency Act, 1920 (the Act, in short). The application has been rejected by the Court below as being time-barred.

(2.) Though not necessary to go into the history of the case in order to decide the point in issue, the factual background of this revision may shortly be stated as hereunder. The petitioners purchased the premises in question in execution of a money decree, in Execution Case No. 84 of 1963, The auction sale took place on 7-2-1966. The sale was confirmed on 1-4-1966 and delivery of possession was effected on 26-6-1966. In the meantime, the defendant judgment-debtor, opposite party herein, had filed an insolvency petition before the District Judge, Motihari, which was registered as Insolvency Case No. 2 of 1966 to adjudge him as an insolvent. In that proceeding he filed an application for stay of confirmation of sale which was rejected on 28-3-1966. It is said that an exparte order declaring the opposite party as insolvent was passed on 10-1-1972 After the judgement of West Champaran was created in 1976, the insolvency case was transferred to the new Judgeship where it was renumbered as Insolvency Case No. 12 of 1976. It is said that on 18-8-1978 the case was dismissed for default. The application for restoration being Misc Case No. 1 of 1978 was also dismissed. The application for restoration of the miscellaneous case vide Misc Case No. 7 of 1980 too was dismissed. However, Misc. Case No. 9 of 1980 for restoration of Misc. Case No 7 of 1980 was not only allowed but the original insolvency case itself was restored by an exparte order without notice on 18-12-1985 After restoration of the insolvency case, the court passed an order of appointment of receiver. By order dated 26-2-1992 it invited objections against the report of receiver. On the same day the receiver locked the premises in question. On 4-3-1992 petition for time was filed for taking necessary steps against locking up of the premises. On 24-3-1992 petition was filed for clarification of certain order also pointing out that the entire records were not available and, therefore, the objection could not be filed. Application in the nature of objection was filed on 2-4-1992 along with petition for condonation of delay under Section 78 of the Act. The court below has rejected the application as not maintainable on the ground af limitation without considering the question of candonarion of delay.

(3.) The question for consideration in this revision is whether the period prescribed for filing application under Section 68 of the Act can be extended Mr Chittranjan Sinha, learned counsel for the opposite party submitted that the period of 21 days is not the period of limitation but a condition precedent for filing application against any act or decision of the receiver and, therefore, not amenable to the general power of the court to condone any delay in that regard Counsel placed reliance on Chintaman Laxman v Ramgopal Raghunathdas, AIR 1948 Nagpur 385 and Burugupalli Rajagopalam v. Official Rectiver, West Godavari, AIR 1958 AP 426 On the point whether the act of locking of the premises amounts to 'act' or 'decision' within the meaning of Section 68, reference was made to the case of Hans Raj v. Rattan Chand, AIR 1967 SC 1780.