MONOMOHAN ROY CHOUDHURY Vs. BHUPAL CHANDRA ROY CHOUDHURY

JUDGEMENT

(1.) This is an appeal from an order made by the District Judge of 24.Parganas dated 29th August 1932 purporting apparently to have been made Under Section 4, Provincial Insolvency Act, 5 of 1920. The appeal is on behalf of one Monomohan Row Choudhury, the claimant who made an application On 11 April 1932, claiming certain plots as belonging to him which had been included in the mortgage executed by the insolvent in favour of the Ghoses. In that petition be alleged in para 3 that the entry of the dags Nos. 467, 468. 471, 463, 464 in Khatian No. 38 is incorrect ; that the appellant was entitled to those dags Nos. 467, 468 and 471, in their entirety and half of dags Nos. 463 and 464, and that they are wrongly recorded in Khatian No. 38. He prayed to the insolvency Court to inquire into the matter after taking evidence and after obtaining a report from the Receiver in insolvency. On that application the learned Judge directed an inquiry by the Receiver. After the Receiver had submitted his report the learned Judge passed an order to the following effect: The properties may be sold with a declaration that one Monomohan Roy Choudhury alleges that he has title and possession in respect of dags Nos. 467, 468, 471 and half of Nos. 463 and 464 which are recorded in the name of the insolvent of the Khatian of Mauza Bilkazala. The claim is not maintainable Under Section 4, Provincial Insolvency Act, and is therefore dismissed.

(2.) Against this order the present appeal has been brought and a preliminary objection has been taken to the hearing of this appeal by Mr. Chakravarty who appears for the receiver on the ground that no appeal lies as this order merely purports to be an order Under Section 4 (3) of the Act and it is really no decision by the District Judge with reference to questions of title, priority, etc., as is contemplated by the provisions of Section 75 read with Schedule l of the Act. On the other hand it is contended on behalf of the appellant that the learned Judge has really dismissed the claim of the appellant as being not maintainable Under Section 4, Provincial Insolvency Act. The order seems to us to be ambiguous and the contention of the respondent might have been right as to what the true meaning of the order is, but from the last few words of the order which we have quoted it is clear that the Judge holds that the claim is not maintainable Under Section 4. Be that as it may the preliminary objection cannot be allowed to prevail, for in our opinion the dismissal of the claim Under Section 4 really tantamounts to a decision Under Section 4 of the Act and entitled the appellant to an appeal Under Section 75 read with Schedule 1 of the Act. The preliminary objection must therefore be overruled.

(3.) It appears clear that the petitioner's petition does raise questions of title as between the insolvent and the mortgagee. On the one hand the contention of the mortgagee is that these dags are situated within the estate and are covered by the mortgage in his favour. Contention to the contrary is made by the claimant appellant that they do not form part of the insolvents estate and are outside the mortgage. This is a question which may be decided by the insolvency Court or if the Court thinks that it is not expedient that the insolvency Court should decide it then it may proceed Under Section 4 (3) of the Act. That is a matter which is entirely within the discretion of the District Judge who may exercise his discretion if he thinks it necessary when the case goes back to him on remand. The result is that the order of the District Judge is set aside and the case is sent back to him for re-hearing of the matter in accordance with the observations which we have made. The costs of this appeal will be paid by the Receiver out of the estate. The hearing fee is assessed at one gold mohur. Henderson, J.