CHARU CHANDRA BHATTACHRJEE Vs. HEM CHANDRA MOOKERJEE

JUDGEMENT

(1.) The present Rule is one issued under the provisions of the proviso to Section 46(1) of the Provincial Insolvency Act, 1907. It appears, and it has been found, that at the, instance of one of the creditors and after the taking of evidence on the 27th of November 1917 the Receiver appointed in certain insolvency proceedings took possession of certain boats as the property of the insolvent. It has further been found that the attachment and the taking of possession were to the knowledge of the petitioner. Thereafter on the 19th December the petitioner before us made an application to the Court of the Subordinate Judge having jurisdiction in the insolvency proceedings in question, and therein prayed that the Court should reverse the act or order of the Receiver and return the boats to him as being his property. The Subordinate Judge held that under the terms of the proviso to Section 22 the application was barred by limitation. On appeal the District Judge confirmed that order.

(2.) The argument of the petitioner before us is that limitation should run not from the date of the act of the Receiver in taking possession but from the date, namely, the 14th December, on which he reported his action to the Court. On the facts found in this particular case we are unable to accede to that contention. It is quite clear that the attachment by the Receiver and his taking of possession are acts by which, within the meaning of Section 22 of the Provincial Insolvency Act, a third person claiming to be the owner was, if the real owner, aggrieved. He should, therefore, have made his application under Section 22 within 21 days from that date.

(3.) In support of his contention before us the petitioner refers us to the case decided by this Court and reported as Hanseswar Ghosh v. Rakhal Das Ghose 20 Ind. Cas. 683 : 18 C.L.J. 359 : 18 C.W.N. 366. But that decision may, we think, be distinguished, as it is quite clear that by the act of the Receiver in the present case the applicant if the true owner was deprived of the possession of his property. In support of the view we take we may further refer to the decision of the Allahabad High Court reported as Thahur Prasad v. Punno Lal 20 Ind. Cas 673 : 35 A. 410 : 11 A.L.J. 603 and a subsequent decision reported as Mool Chand v. Murari Lal 21 Ind. Cas. 702 : 36 A. 8 : 11 A.L.J. 979.