1. This is an appeal from an order of the District Judge, Bulandshahr, in an insolvency proceeding, refusing to permit the applicant to execute his decree for recovery of arrears of rent by ejectment of the insolvent tenant. The land- holder himself applied to the Court for such permission, because his suit in the revenue Court had been dismissed on the ground that the receiver had not been impleaded. The Court below has held that the landholder should get his decretal money entered in the schedule and has refused to permit him to proceed with the execution of his decree.
2. It is quite clear that under Section 28(2) the property of the insolvent vests in the receiver, and no creditor is allowed to have any remedy against such property, except with the leave of the Court; but under Sub-section (5) the property of the insolvent does not include any property which, by any enactment for the time being in force, is free from liability to attachment and sale in execution of a decree. The insolvent is an ex-proprietary tenant, and holds several ex-proprietary plots. Such plots are not, under Section 23, Agra Tenancy Act, attachable and saleable in execution of a creditor's decree. It follows that these ex-proprietary plots do not vest in the receiver at all, and he has no right to seize possession of them or to manage them in his own right so as to realize the income and distribute the amount among the creditors. Such a procedure is contrary to the provisions of the Tenancy Act as well as the Provincial Insolvency Act. It is against the spirit of these enactments that the receiver should dispossess the tenant from his non-transferable tenancy lands and merely give him a maintenance allowance, appropriating the rest of the income to the payment of his debts.
3. The landlord is entitled to recover the arrears of rent, and is not bound to go to the insolvency Court to get the decretal amount entered in the schedule of creditors. So long as his decree for arrears of rent remains unpaid, he is entitled to proceed under the Agra Tenancy Act and eject the exproprietary tenant. We do not think that the insolvency Court can prevent him from executing such a decree. If the receiver desires that the ejectment should not be brought about, then he should see that the rents are duly paid. It was pointed out in the case in Bhola Nath v. Chunni Lal : AIR1932All41 that ex-proprietary tenancies do not vest in the receiver at all. No opinion was expressed on the question whether the receiver can intervene and recover rents from sub-tenants direct, as respondent had not challenged the order of the Court below in that case by filing any cross-objection. We therefore think that the application was misconceived and that no permission of the insolvency Court was necessary for the landholder before he proceeded to execute his decree for arrears of rent by ejectment or otherwise. We express no opinion on the tenant's right to apply to the District Judge for a direction that the receiver should pay the landlord the arrears of rent due out of the amount realized by him from the subtenant. We formally dismiss the appeal, but make no order as to costs.