LILADHAR UTTAMCHAND MARWADI Vs. NAGO AND ANOTHER

JUDGEMENT

(1.) 1. This is a defendant's appeal from the judgment and decree of the Third Additional District Judge, Amraoti, reversing the decree of the Subordinate Judge, Second Class, Chandur, dismissing the suit.

(2.) THE respondent-plaintiff filed the suit out of which this appeal arises for recovering Rs. 807-12-0 on account of his share of the crop which was grown in the field cultivated by both the parties jointly under a batai contract. The plaintiff's case was that the entire crop was deposited with the defendant, whereas the defendant pleaded that only two pickings of cotton were stored with him and that the quantity of cotton was appropriated by him towards the lease money. He thus denied the plaintiff's claim. The trial Court found that the plaintiff deposited with the defendant nothing more than two pickings of cotton and that the value of the cotton did not exceed the lease money and dismissed the suit. The plaintiff having appealed in the Court of the District Judge, Amraoti, the suit was remitted to the Court of first instance for recording additional evidence and returning findings on two issues, viz.; (1) what was the produce of the leased fields and (2) what was the market value ? The trial Court found the crop to be of total value of Rs. 2,187-8-0 and of the quality as alleged by the plaintiff. The defendant questioned the correctness of the findings. The appeal was thereon transferred to the Court of the Third Additional District Judge, Amraoti, which after an exhaustive review of the evidence on record, found that the plaintiff had stored the entire crop with the defendant, that the value of the crop amounted to Rs. 2,187-8-0 and that the plaintiff's share was Rs. 1,093-12-0 minus Rs. 286, that is Rs. 807-12-0 for which a decree was accordingly passed in favour of the plaintiff. The defendant has therefore preferred this appeal.

(3.) BUT there is one important question of law raised on behalf of the appellant. After the appeal was filed on 16th June 1928 in the Court of the District Judge the appellant was adjudged an insolvent on 17th August 1928. It is argued that the appellant was incompetent to prosecute the appeal and that the decree passed in his favour is void and inoperative. The fact that he was adjudicated an insolvent was brought to the notice of the appellate Court and it was urged that the appellant was not entitled to maintain the appeal. The lower appellate Court in its order dated 16th August 1930 held that his insolvency did not disqualify him from prosecuting his appeal, on the authority of Mahadeo v. Jainarain AIR 1921 Nag 10 and Tati Reddi v. Ramchandra Rao AIR 1921 Mad 402. The appellant's contention is that the insolvent's right to the property, viz., the crops respecting which the suit was filed was "property" within the meaning of Section 2, Provincial Insolvency Act; and that the right of appeal being appurtenant to this property vested in the receiver in accordance with Section 28(2) of that Act. The question therefore is whether the right of appeal vested in the receiver in insolvency so as to deprive the appellant of his right to prosecute the appeal. It must be noticed that the suit was not for recovery of the crops but their value and interest on it by way of damages. Section 28(5), Provincial Insolvency Act, excludes from the definition of property any property which is exempted by the Code of Civil Procedure 1908, or, by any other enactment for the time being in force from liability to attachment and sale in execution of a decree.