DWARKA PRASAD Vs. MTSUNDER

JUDGEMENT

(1.) This is an appeal from an order passed by the learned District Judge, Farrukhabad, in circumstances which are somewhat peculiar. The order appealed from was passed in appeal from the order of the Sub ordinate Judge sitting as an insolvency Judge. Murli and Shazade were adjudged insolvent by the insolvency Court at Cawnpore, and a receiver was appointed to take charge of their assets. The house, which is now in dispute, is situate in Farrukhabad, and was claimed by the receiver as the property of the insolvents. The appellants in this Court deny the title of the insolvents and claim to be the owners of the house in dispute. They preferred an objection in the insolvency Court at Cawnpore putting forward their claim and denying the right of the insolvents. The application and the order of the Court thereon could not be traced. The appellants allege that the only order which the Court passed was "file without consideration." The respondent, on the other hand, alleges that the objection was dismissed in default of appearance. The judgment of the lower appellate Court also assumes this fact. An application filed by the appellants at a certain stage of proceedings likewise mentioned that the objection bad been dismissed in default. It is safe to assume, for the purpose of this appeal, that the appellants objection above referred to was dismissed for non- appearance.

(2.) The appellants then instituted a regular suit in the Court of the Munsif, Farrukhabad, within whose jurisdiction the house in dispute lies, for a declaration of their right. The receiver, among others, was impleaded as a party. The suit did not proceed to trial, as it was withdrawn with liberty to bring a fresh suit. No fresh suit however has since been instituted.

(3.) The receiver subsequently sold the house to the respondent, Mt. Sunder, who applied to the insolvency Court at Cawnpore for delivery of possession of the house to her. That Court sent a rubkar to the Judge of the insolvency Court at Farrukhabad for delivery of possession, as prayed by the purchaser. The appellants objected to any delivery of possession being1 made. In their objection they reiterated their title to the house and repudiated that of the insolvents, questioning the receiver's power to transfer it and the Court's power to award possession in that summary manner. They emphasised that they had all along: been in possession and could not be ousted in the manner desired by the purchaser. The insolvency Judge (Subordinate Judge) Farrukhabad summarily dismissed the objection on the ground that a similar objection had been previously dismissed. This refers to the appellants objection in the insolvency Court at Cawnpore which, as above mentioned, was dismissed for non-appearance. From the order of the insolvency Judge, Farrukhahad, an appeal was preferred to the District Judge, Farrukhabad, who upheld it on grounds which, in my opinion, cannot be sustained. He assumed that the house in dispute was "attached" property, that the objection to attachment was dismissed under Order 21, Rule 58, Civil P.C., and that the regular suit instituted by them in the Court of the Munsif, Kanauj, was one under Order 21, Rule 63, Civil P.C. The learned Judge expresses the opinion that the dismissal of objection for non-appearance became final, as it has not so far been set aside by a decree passed in a suit under Order 21, Rule 63, Civil P.C. The consequence, according to the learned Judge, is that the appellants must quietly submit to possession being delivered to the purchaser from the receiver. The learned Judge does not seem to have applied his mind to the further question whether it is open to an insolvency Court, without coming to a decision under Section 4 of the Act, to deliver possession of property sold by the receiver, which property is in possession of third persons. The Subordinate Judge and the District Judge of Farrukhabad have treated the case as if it were one of transfer of a decree for execution from a Court at Cawnpore to a Court at Farrukhabad and that they were Courts executing the decree.