NIADAR Vs. RAMJI LAL

JUDGEMENT

(1.) This appeal arises out of an insolvency proceeding. The crops in suit were attached by the receiver in insolvency at the instance of the appellant, Niadar, who is a creditor of the estate. The insolvent, Baldeo, is the brother of Mt. Kesar, the recorded proprietor of the property, but it appears that they are not at present on good terms as there has been a criminal case between them. The crops are claimed by the respondent, Ramji Lal, and the District Judge has decided on the evidence that they were sown by him and belonged to him.

(2.) A preliminary objection is taken that no appeal lies on the ground that a creditor is not a person aggrieved and, therefore, has no right of appeal. The respondent relies on the decision of this Court in Jhabba Lal V/s. Shib Charan Das (1917) 39 All. 152. This was a decision under the Act of 1907. Under that Act there was a difference of opinion between this Court and the Madras High Court. This Court held that the receiver was the only person who could appeal in such cases, whereas the Madras High Court in Tiruvenkatachariar V/s. Thangayiammal (1916) 39 Mad. 479 held that an individual creditor was a parson aggrieved and was entitled to appeal. This conflict of opinion has been set at rest by an alteration in the language of the present Insolvency Act. Section 46 of Act No. III of 1907 gave a right of appeal to "any person aggrieved by an order made in the exercise of insolvency jurisdiction." In Section 75 of Act No. V of 1920 these words have been changed to "the debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction". In Sub-section (2), under which the present appeal is preferred, these words are summed up as "any such person aggrieved by any such decision", la our opinion the alteration in the language of the present Act indicates an acceptance of the Madras view that a creditor is a person aggrieved by the decision in a case of this kind. The decision clearly is adverse to his interest for it reduces the amount of property out of which he is entitled to claim a dividend.

(3.) On the facts, however, we see no reason to differ from the view of the Court below. It is common ground that this land was cultivated by a tenant named Mare who was given a lease by Mt. Kesar. The evidence which the learned Judge has accepted goes to show that when Mare gave up the land, it was let to the respondent, Ramji Lal, who sowed the crops on it. It is true that the patwari supports the case of the appellant but the learned Judge has given reasons for not accepting his evidence in preference to that tendered on the other side. We accordingly dismiss the appeal with costs.