KALKA DAS Vs. GAJJU SINGH

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff appellant for the recovery of arrears of rent of an agricultural occupancy holding. Kalka Das, the plaintiff appellant, is the zamindar and lambardar of the village. Gajju Singh, the principal respondent in the case, is the occupancy tenant. He was declared an insolvent on the 23 of June, 1914. On the 5 of June, 1917, Kalka Das brought the suit out of which this appeal has arisen for the recovery of arrears of rent for 1322, 1323 and 1324 Faslis in respect of the holding. The plaintiff impleaded the Receiver also as a defendant in the suit. The Receiver objected to being brought on the record on the ground that the order of the District Judge vesting the property of the insolvent in him (the Receiver) did not refer to the occupancy holding. This objection was allowed. At the time the suit was brought by Kalka Das the insolvent had not been discharged. The latter pleaded in defence that the suit against him was not maintainable in view of the provisions of Section 16(2) of the Provincial Insolvency Act, No. III of 1907. The courts below have accede to this pica and have dismissed the suit; hence this second appeal to this Court which, though triable by a single Judge, has been referred to this Full Bench in view of the decision in Raghubir Singh V/s. Ram Chandar (1911) I.L.R. 34 All. 121.

(2.) On behalf of the appellant it is urged that the decision in the case mentioned above is incorrect, as the attention of the learned Judges who decided it had clearly not been called to Section 193 of the Tenancy Act, In the case referred to it was held that a suit for arrears of rent against a tenant declared an insolvent, and as against whom such declaration was in full force and effect at the date of the suit, was not maintainable.

(3.) That decision was based on Section 16(2) of the Provincial Insolvency Act and the learned Judges say that that section expressly provides that save as therein provided no suit shall be brought against a person who is declared to be insolvent, without leave of the court. They went further onto express the opinion that so far as an ordinary suit for rent is concerned the landlord was in exactly the same position as any other creditor.