KUNDAN LAL Vs. KHEM CHAND

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by Khem Chand and others who had purchased certain property on the 18 of July 1908 from one Pokhair Prasad. Pokhar Prasad was adjudicated an insolvent on the 30 of November 1917, Kundan Lal was appointed Receiver. Kundan Lal advertised the property purchased by Khem Chand and Chuni Lal from Pokhar Prasad in 1908 for sale as the property of the insolvent. Khem Chand and Chuni Lal then applied to the District Judge under the provisions of Section 22 of Act III of 1907 for an order setting aside the proposed sale and a declaration that the property was theirs. THIS application was dismissed on the ground that it had not been filed within 21 days of the act complained of. Khem Chand and, Chuni Lal subsequently, with the permission of the District Judge, instituted a suit against the Receiver and the insolvent for a declaration that the property in question belonged to them. The suit has been decreed in their favour on the merits. In second appeal it is urged on behalf of the Receiver that the suit as brought by the plaintiffs must fail because they elected to pursue their remedy under Section 22 and their claim had been decided against them and that, therefore, they could not file a separate suit with the same object. Relinace is placed on the decision in Pita Ram V/s. Jujhar Singh 43 Ind. Cas. 573 : 39 A. 626 but, accepting the law laid down in that decision, there is no force in this appeal. In order to debar a person from taking his remedy in such a case by way of a regular suit it is necessary to establish that he has in effect pursued a remedy under Section 22. Here the plaintiffs did not pursue their remedy under Section 22. Their remedy was by an application, made within 21 days from the date of the order or decision complained of. They made no application within 21 days from, the date of the order or decision complained of. It is true they made an application after 21 days, but that application, although purporting to be an application, under Section 22, was from its very nature not an application under Section 22. We, therefore, hold that in this case the plaintiffs did not elect to pursue their remedy under Section 22 and, inasmuch as there was no determination on the merits before this suit was instituted, they were within their lights in seeking their remedy by a regular suit. We, therefore, dismiss this appeal with costs.