RAJA SHIAM RIKH Vs. PARBATI

JUDGEMENT

(1.) This is a second appeal by the defendants in a suit for a declaration. These defendants are the wife and the minor son of one Chatar Singh who has been adjudicated an insolvent. The principal respondent, the plaintiff in the suit, is a land-holder who on various dates between the 7 of March and the 29 of March, 1911, had obtained from a Revenue Court decrees for arrears of rent against the aforesaid Chatar Singh. After the latter had been adjudicated an insolvent, this decree holder applied to the Insolvency Court, ostensibly under the provisions of Section 60(2) of the Provincial Insolvency Act, No. III of 1907, for the leave of the Court to institute the present suit. The object of this suit is to challenge the validity of two deeds of transfer, dated the 10 of July, 1908, and the 16 of May, 1910, respectively, whereby Chatar Singh, more than two years prior to his insolvency, had purported to transfer immovable property in favour of his wife and his minor son. The suit was resisted upon various grounds, but the particular point which has been principally argued before us was not taken in either of the courts below, and the reason for this becomes obvious enough as we consider that point in detail. There were objections taken to the form of the suit and a plea of limitation was raised, but both the courts below have decided in favour of the plaintiff in respect of legal objections, as well as on the merits, and have granted him the decree for which he sought. Now, the decision of the lower appellate court in this case is dated the 19 of December, 1918. On the 4 of March, 1921, a Full Bench of this Court pronounced its decision in the case of Kalka Das V/s. Gajju Singh (1921) I.L.R. 43 All. 510 in which the whole question of the relations between the jurisdiction of the Revenue Courts constituted under the Local Tenancy Act, No. II of 1901, on the one hand, and the courts acting under the Provincial Insolvency Act, No. III of 1907, was re-considered and determined. There had been a previous decision of this Court, Raghubir Singh V/s. Ram Chandar (1911) A.L.J. 1287, according to which a land-holder could not institute a suit for arrears of rent under the provisions of the Tenancy Act against a tenant who had been adjudicated an insolvent. This was the precise point dealt with by the Judges of this Court in the Full Bench ease. They overruled the elder decision and held that the Provincial Insolvency Act did not apply at all so as to govern or affect the rights of a land-holder against his tenant, enforceable by means of any suit or proceeding under the Local Tenancy Act.

(2.) In the second appeal now before us the main argument addressed to us on behalf of the appellants has been based upon the principles laid down in this Full Bench decision. It seemed to us obviously necessary to allow the point to be raised and argued. The question is one of jurisdiction, and it could not well have been raised in the courts below in view of the state of the law as declared by this Court prior to the Full Bench decision of the 4 of March, 1921. We are not prepared to dissent from or to criticize the decision of the Full Bench in Kalka Das V/s. Gajju Singh (1921) I.L.R. 18 All. 510. Accepting the law to be what is therein stated, it becomes beyond question that if the Provincial Insolvency Act would not bar a suit by a land-holder against his tenant brought before a Revenue Court under the provisions of the Tenancy Act, neither could it bar a proceeding in execution of a decree before such court. The whole of the present action, therefore, has been misconceived. The proper remedy of the plaintiff respondent was, in the first place, to take out execution of his decrees in the Revenue Court as against, any property which he alleged to be the property of his judgment- debtor. If the present appellants, or either of them, had resisted the seizure of any such property on the ground that it belonged to them in virtue of a transfer made prior to the insolvency, a question would have been raised which the Execution Court could deal with, in the first instance, and in respect of which either party aggrieved by the decision of the Execution Court would have a right to seek a determination by means of a regular suit. The suit out of which the present appeal arises was brought with the leave of the court for the benefit, not of the plaintiff respondent alone, but of the Receiver and of the entire body of creditors. For the reasons stated it seems clear to us that the suit was entirely misconceived and not maintainable at all in its present form. We must, therefore, allow this appeal, set aside the decrees of both the courts below and direct that the suit be dismissed in its entirety. We order accordingly, but under the circumstances of the case we think it only just to direct that both parties bear their own costs in all three courts. Walsh, J.

(3.) I entirely agree, but having regard to the exceptional circumstances of the case and the miscarriage which appears to have resulted up to the present moment, I propose to say a few words with reference to the course which it seems to me is still open in law to remedy the mischief, and which,--on the materials before us one can of course say no more,--I should be prepared to take if I were a Revenue Officer approached by the plaintiff for the appropriate remedy in spite of the serious lapse of time. Section 14(2) of the Limitation Act provides that in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the same party for the same relief, shall be excluded where such proceeding is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. On the facts as found in the lower courts, the wife and the son in this case are in truth the same party as the insolvent and this Court is unable to entertain the suit by reason of jurisdiction. As the law stands, it is quite clear that the jurisdiction of the Civil Courts, strictly so called, and of the Insolvency Court respectively, on the one hand, and of the Revenue Court on the other, are mutually exclusive. A decree-holder, who is the landlord of an agricultural tenancy to which the Agra Tenancy Act applies, is not a creditor under the Provincial Insolvency Act in respect of his rent or decree. His decree is not a provable debt. Those statements are the corollaries of the Full Bench decision referred to by my brother which was passed in March, 1921.