PANDU INDRABHAN KUNBI Vs. WAMAN KASHINATH DHARMADHIKARI

JUDGEMENT

(1.) THIS second appeal arises out of insolvency proceedings and the question is whether an Insolvency Court can take cognizance of proceedings of this kind. The order of adjudication was passed on 9th November 1928 and then proceedings for the setting aside of certain alienations commenced. In 1932 a receiver was appointed and when he tried to take possession of the property in suit he was obstructed by the appellants who claimed that the property was theirs. The Insolvency Court thereupon instituted an enquiry and held that the property belonged to the insolvent and directed the appellants to hand over possession to the receiver. The appeal is against that order. The appellants contend that the Insolvency Court has no power to do this. If any person resists and sets up a title in himself however flimsy, or even claims to hold adversely to the insolvent then the only remedy is for the receiver to file a regular suit for possession. Reliance is placed on Rama Yado v. Dhekal Jana AIR 1938 Nag 247, Chittammal v. Ponnuswami Naicker (1926) 13 AIR Mad 363 and G.N. Godbole v. Mt. Nani Bai AIR 1938 Nag 546. The Madras decision holds that in such circumstances action cannot be taken under Section 56(3), Provincial Insolvency Act, because that Section is limited to cases where possession is on behalf of the insolvent or where the person in possession claims title under him. It does not apply to persons who claim to hold adversely to the insolvent or to any other person whom the insolvent has not a present right to remove. Para. 2 of Section 56(3) expressly prohibits that nothing in this Section shall be deemed to authorize the Court to remove from the possession or custody of property any person whom the insolvent has not a present right so to remove.

(2.) THE learned Madras Judges also draw attention to the corresponding provision in the Presidency Towns Insolvency Act (Section 58) and state that that puts the matter beyond doubt. According to them the Official Assignee is in the same position for these purposes as a receiver of property appointed under Order 40, Rule 1(2), Civil P.C., and the learned Judges consider that the powers of the receiver under the Provincial Insolvency Act are not higher than those of the Official Assignee. But they go on to state that the proper course in such cases is for the Insolvency Court to proceed under Section 4. A proper application to that effect should be made, an issue struck and the matter tried. With this we agree up to a point.

(3.) WE do not understand the expression "has not a present right so to remove" to mean "has not a present right to remove except under a decree of a Civil Court." An owner of property whose claim is not barred by limitation has a present right to remove a trespasser even though he is not allowed to take the law into his own hands and to turn him out himself. He has the right to set the machinery of the law into motion forthwith, and that can only be done if he possesses the necessary right at the moment of his application or suit, otherwise it would be dismissed as premature. It was argued by the other side that the matter here falls under Order 21, Rule 98, which entitles a Court to remove from possession any person who resists or obstructs if it is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or any other person at his instigation. We do not think that the rule applies. It is a special rule limited to the case of a decree-holder trying to obtain possession under his decree. Apart from the fact that there is no decree here the Provincial Insolvency Act has its own rules in this behalf and so a rule of the Civil Procedure Code pertaining to another matter cannot be applied by analogy under the general provision of Section 5, Provincial Insolvency Act.