DINESH CHANDRA ROY CHOUDHURY Vs. JAHAN ALI BISWAS

JUDGEMENT

(1.) This is an appeal by a Receiver in insolvency, arising out of an application made by him as the legal representative of the judgment-debtors in whose favour an order of adjudication had been passed under the Provincial Insolvency Act, on 19 September 1932. The application made by the Receiver was to have a sale in execution of a decree declared null and void; and there was a prayer in the application that the aforesaid sale held on 22 September, 1932, in execution might not be confirmed. The decree-holders purchasers at the sale held in execution of their decree, opposed the application of the Receiver, on the ground that they were bona fide purchasers in good faith at the sale in execution, who were not aware of the insolvency proceedings; and their title could not be called in question by the Receiver.

(2.) The Courts below have concurrently held, on materials before them, that the decree- holders purchasers were not at all aware of the insolvency proceedings, or of the order of adjudication. It was also held by the Courts below that the decree-holders were purchasers at the sale in execution of decree in good faith. On the above conclusion on facts, the decision given by the Courts below was that the sale held in execution of decree could not be vacated and the confirmation of the sale could not be withheld for the reason that the properties of the insolvent judgment-debtors had vested in the Receiver in insolvency under Section 28, Sub- section (2), Provincial Insolvency Act. The learned District Judge in the Court of appeal below had further come to the conclusion that in view of the provision contained in Section 51, Sub- section (3), Provincial Insolvency Act, 1920, the operation of Section 28, Sub-section (2) of the Act will be suspended in the case of bona fide purchasers, and protection given to such purchasers.

(3.) A preliminary objection was raised on behalf of the respondents in this appeal, relating to the maintainability of a second appeal to this Court, as preferred by the Receiver in insolvency, on the ground that the application before the Court of execution could not be treated as one under Section 47, Civil P.C., and there could not be any second appeal in a case arising out of an application for setting aside a sale, on an application praying that a sale held in execution of a decree, might not be confirmed. The question for consideration on the preliminary objection as raised, is whether or not the application in which the appeal has arisen was one under Section 47, Civil P. C, there being no question that a second appeal would otherwise be barred under the law. For determination of that question, the position of the Receiver in insolvency making the application before the Court has to be taken into account. Was the Receiver a "representative" of the judgment-debtors, and could he be treated as such, in the matter of the application before the Court? and on this point the observation of Sir George Rankin, C.J., in Mohitosh Dutta v, Rai Satish Chandra, 1932 Cal 203, is entitled to great weight. As observed by the learned Chief Justice: Any general statement to the effect that a Receiver is or is not representative for the purposes of Section 47 of the Code is merely misleading. It all depends on the purpose and nature of the application made by the Receiver, whether he is a representative of the judgment-debtor or not. For some purposes, he would be entitled as representing the judgment-debtor to litigate matters under Section 47 of the Code.