JUJHAR SINGH Vs. PITA RAM AND SHANKAR SINGH

JUDGEMENT

(1.) This appeal arises out of an action brought by the plaintiff in the court of the Munsif of Jhansi against two defendants for a declaration of title in respect of a varied assortment of property, including two houses, some crops, and a quantity of movable property, which, he alleges to belong to him.

(2.) The first defendant had obtained a decree against the second defendant in the same court in the year 1911, for the sum of Rs. 386-7-4. In the year 1910, the second defendant became insolvent within the jurisdiction of the Insolvency Court of the District Judge of Jhansi, No receiver was appointed, and the District Judge of Jhansi became empowered, under Section 23 of the Provincial Insolvency Act, 1907, to exercise the powers of a receiver. Being set in motion by the first defendant, the decree-holder or judgement-creditor aforesaid, the District Judge, as such receiver, attached the property which is the subject-matter of this action as being property of the insolvent, and it therefore* vested in him as such receiver. The plaintiff, who alleged that the property was in fact his and that he was therefore "a person aggrieved," within the meaning of Section 22 of the Provincial Insolvency Act, by such act of attachment, applied to the Insolvency Court for the restoration of the property to himself as the rightful owner, or in the other words for an order under the said section reversing the act of attachment. Now it is to be observed that in accordance with the English Bankruptcy practice, a person in the position of the plaintiff in this action who is a stranger, so to speak, to the bankruptcy, and whose property has been seized wrongfully, according to his view of the case, by the receiver in bankruptcy, is not confined to the remedy given him by the Provincial Insolvency Act. He can, if he pleases, apply to the Insolvency Court, inasmuch as Section 22 applies in express terms to his grievance. But he can, if he pleases, ignore the Insolvency Court and sue in a Civil Court for a return of his property in an ordinary action against a trespasser. In this particular case, the plaintiff would have been compelled to sue the District Judge, not in his capacity as such, but in his executive capacity as the receiver of the insolvent s property.

(3.) The application being made to the Insolvency Court, it was the duty of that court to entertain it and, after hearing the evidence tendered on behalf of the applicant on the one hand, and on behalf of the insolvent s estate on the other hand, to decide the issues raised both of fact and law, and to dispose of the matter by a formal order determining the rights of the parties to the subject matter of the application as in an ordinary suit.