HUKUMAT RAI Vs. PADAM NARAIN

JUDGEMENT

(1.) THE facts connected with this appeal are shortly as follows:--One Nand Kishore was adjudicated an insolvent. THE Receiver in the insolvency matter attached certain timber, alleging it to be the property of the insolvent. Two parties claimed the timber, viz., the plaintiff in the present suit and the principal defendant Hukumat Rai and Son. THE plaintiff in the present suit as well as Hukumat Rai and Son, objecting to the attachment, applied under Section 22 of the Provincial Insolvency Act to set aside the attachment. THE Judge in the insolvency matter decided that the property did not belong to the insolvent and incidentally decided that it belonged to Hukumat Rai and Son. THE plaintiff appealed to the High Court, which dismissed the appeal. Meanwhile the plaintiff brought the present suit claiming the timber as against Hukumat Rai and Son. THE Munsif dismissed the suit on the preliminary point that the previous proceedings were a bar and that the suit was not maintainable. In appeal the Subordinate Judge has set aside the order of the Munsif and remanded the case, holding that the suit was maintainable. We think that the decision of the learned Subordinate Judge was correct. All that the Court having seizin of the insolvency matter was called upon to decide was whether or not the attachment should be maintained. THE attachment could only be maintained if the property belonged to the insolvent. It was quite immaterial to which of the claimants the property belonged. It is, therefore, clear that if the matter had rested with the decision of the Judge in the insolvency matter the present suit could certainly have been maintained as a suit between the rival claimants. It is contended that the decision on appeal operates as res judicata. We do not think that this contention is valid. THE decision which was affirmed was that of the Insolvency Judge who certainly had no jurisdiction to hear the the present suit. We dismiss the appeal with costs of this Court, other costs will follow the event. Costs in this Court will include fees on the higher scale.