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Hashmat Bibi Vs. Bhagwan Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All65
AppellantHashmat Bibi
RespondentBhagwan Das and ors.
Excerpt:
.....working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - while the application was under inquiry the district judge received information on the strength of which he came to the conclusion that karim bakhsh had failed to disclose, or was attempting to conceal, certain immovable property belonging to him. 170 and 171 now before us, set aside the orders complained against in those appeals, and direct the district judge to re-admit the petitions of hashmat bibi and abdul ghani on to his file of pending applications and to dispose of them.ryves and piggott jj.1. these are three connected appeals arising out of insolvency proceedings. karim bakhsh applied to the district judge of jaunpur on the 28th of august, 1912, for an order adjudicating him an insolvent. while the application was under inquiry the district judge received information on the strength of which he came to the conclusion that karim bakhsh had failed to disclose, or was attempting to conceal, certain immovable property belonging to him. he accordingly passed an order under section 13 (3) of the provincial insolvency act for the attachment of the said property, viz. shares in a tiled house and courtyard and in certain trees, a zamindari share and a portion of a fixed rate holding, as being property in the possession or under the control of karim bakhsh. this.....
Judgment:

Ryves and Piggott JJ.

1. These are three connected appeals arising out of insolvency proceedings. Karim Bakhsh applied to the District Judge of Jaunpur on the 28th of August, 1912, for an order adjudicating him an insolvent. While the application was under inquiry the District Judge received information on the strength of which he came to the conclusion that Karim Bakhsh had failed to disclose, or was attempting to conceal, certain immovable property belonging to him. He accordingly passed an order under Section 13 (3) of the Provincial Insolvency Act for the attachment of the said property, viz. shares in a tiled house and courtyard and in certain trees, a zamindari share and a portion of a fixed rate holding, as being property in the possession or under the control of Karim Bakhsh. This wag on the 4th of February, 1913. On the 8th of February, 1913, an order adjudicating Karim Bakhsh to be an insolvent was passed and a receiver was appointed. On the 12th of February, 1913, two persons, viz., Hashmat Bibi, wife of Karim Bakhsh, and Abdul Ghani, minor son of Karim Bakhsh, presented separate applications to the District Judge, claiming the property attached in pursuance of the order of the 4th of February, 1913, as their own property. These petitions of objection referred to order XXI, Rule 58, of the Code of Civil Prooedure and purported to be made under that rule read with Section 47 of the Provincial Insolvency Act (Act III of 1907). Each of these applications was rejected by the District Judge on the ground that the provisions of Order XXI, Rule 58, aforesaid had no application and that the only remedy open to the petitioners was either by separate suit, or by appeal against the order of attachment. Three appeals have accordingly been presented to this Court. One is by Hashmat Bibi and Abdul Ghani jointly against the order of the 4th of February, 1913, directing the attachment of the property in question. The other two appeals are by Hashmat Bibi and Abdul Ghani separately against the orders of the 22nd of February, 1913, dismissing the objections filed by them on the 12th of February, 1913. These appeals have been admitted by special leave of this Court under Section 46 of Act III of 1907. The Provincial Insolvency Act lays down no procedure to be followed by the court when effecting an attachment. According to Section 47, therefore, the court must follow the same procedure as it would do in the exercise of its original civil jurisdiction, and must also exercise the same powers. Now an attachment Under Section 13(3) of the Provincial Insolvency Act is strictly analogous to an attachment before judgment effected under order XXXVIII, Rules 5 to 12, of the Code of Civil Procedure. According to order XXXVIII, Rule 8, of the Civil Procedure Code a claim may be preferred to property attached before judgment, and the court is, thereupon, bound to investigate such claim in the manner provided for the investigation of claims to property attached in execution of a decree for payment of money. This refers us back to order XXI, Rule 58, of the Civil Procedure Code. In our opinion, therefore, the District Judge was bound to entertain the objections put forward by Hashmat Bibi and Abdul Ghani and to hold an investigation as to the validity of the claims put forward by them to the ownership of the property attached. The necessity for doing this at some stage or other of the proceedings is apparent when we consider that, by reason of Section 16 (2) of the Provincial Insolvency Act, the property in question vested in the receiver from the date of his appointment, if in fact it was the property of the insolvent, but did not so vest if it was the property of Hashmat Bibi and Abdul Ghani. It has been suggested before us that, for this very reason, the present appellants might have waited until the receiver proceeded to take some action by way of realizing this property for the benefit of Karim Bakhsh's creditors, and then might have appealed against the receiver Under Section 22 of Act No. III of 1907. We take note of this argument only to point out that this is a course which was apparently open to these appellants, But it does not follow that they had no right to question the order of attachment itself. We think, for the reasons already given, that they have this right and that their petitions of the 12th of February, 1913, should not have been rejected without inquiry. We accordingly accept the appeals Nos. 170 and 171 now before us, set aside the orders complained against in those appeals, and direct the District Judge to re-admit the petitions of Hashmat Bibi and Abdul Ghani on to his file of pending applications and to dispose of them. The costs of these appeals will abide the event.

2. As regards Appeal No. 169 of 1913, we think it must be formally dismissed, on the ground that the District Judge had before him sufficient primd facie reason for directing the attachment by his order of the 4th of February, 1913, The parties will beat their own costs of this appeal.


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