JITA MAL Vs. MADAN LAL

JUDGEMENT

(1.) This is an appeal by the decree-holder arising out of insolvency proceedings. The receiver attached cloths in a shop styled "Rovindra Nath Raj Kumar" which is carrying on business at Aligarh, alleging that this was the property belonging to the insolvents Madan Lal Madho Ram. Objection was filed on behalf of Dr. Kiahaa Chand who claimed that the shop was his own shop and the cloths belonged to him. After evidence was recorded the learned Judge came to the conclusion that it was not proved that the property belonged to the insolvents. He has accordingly ordered that the property may be released from attachment and he also refused to punish the insolvents.

(2.) The insolvents were carrying on a cloth business and owed money to a number of creditors. There was an exhibition held at Muttra in February 1926 and they occupied shops Nos. 25 and 26. The register kept by the treasurer shows that a fire started at shops Nos. 27 and 23 and that nearly half the shops in the exhibition were burnt. The shops occupied by the insolvents were separated from the shops where the fire started by a gate which is said to be about 20 feet wide. It might well have been a wooden structure. We think that the entry in the register is conclusive to show that the shops occupied by the insolvents also took fire. The oral evidence produced by the decree-holder that their shops did not catch fire cannot be accepted. It was next suggested that the insolvents were able to take out their cloths from the shop and were able to take them in a lorry to Aligarh, Evidence on this point is hearsay because the witness in cross-examination had to admit that the cloths were not removed or loaded in the lorry in his presence. It is also inconsistent with the admitted story that the insolvents went to Saha-ranpur from Muttra and not to Aligarh direct.

(3.) There is as a matter of faofcno evidence that the cloths were actually brought by the insolvents to Aligarh except the admission of one of the insolvents that damaged cloths of the value of Rs. 200 or Rs. 300 were brought there by them.