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Mohni Vs. Baij Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1918All3963(1); (1918)ILR40All582; 46Ind.Cas.394
AppellantMohni
RespondentBaij Nath and ors.
Excerpt:
.....(provincial insolvency act), section 22 - insolvency--execution of decree--attachment--objection of claimant to attached property disallowed--judgment-debtors declared insolvent--suit by claimant for declaration of title. - - her objection having been disallowed, she was clearly entitled to bring a suit for a declaration of her title and a necessary party to that suit would be the receiver in insolvency who represented the claims (if any) of salig ram and sagar mal and their 'creditors. --if the insolvent, or any of the creditors or any other person is aggrieved by any act or decision of the receiver, he may apply to the court, and the court may confirm, reverse or modify the act or decision complained of and make such order as it thinks just'.the plaintiff in the present case was..........and remand the case to that court, with directions to readmit the appeal and deal with it according to law. costs here and heretofore will be costs in the cause.3. appeal decreed and cause remanded.
Judgment:

Henry Richards, C.J., and Pramada Charan Banerji, J.

1. This appeal arises out of a suit for a declaration of right. The plaintiff claimed a certain house as being her property. The house had been attached by one Baij Nath in execution of a decree against Salig Ram and Sagar Mai. Salig Rain and Sagar Mal were declared insolvents and any property they had vested in the receiver. The Musammat, as already stated, claimed the property as being hers and said that it did not belong to Salig Ram or to Sagar Mal. Her objection having been disallowed, she was clearly entitled to bring a suit for a declaration of her title and a necessary party to that suit would be the receiver in insolvency who represented the claims (if any) of Salig Ram and Sagar Mal and their 'creditors. Both the courts below have dismissed the suit as being barred by the provisions of Section 22 of the Provincial Insolvency-Act. That Section is as follows:--'If the insolvent, or any of the creditors or any other person is aggrieved by any act or decision of the receiver, he may apply to the court, and the court may confirm, reverse or modify the act or decision complained of and make such order as it thinks just'. The plaintiff in the present case was not complaining of any act or decision of the receiver in the insolvency. She was complaining that the court which was executing the decree of Baij Nath had disallowed her objection and decided that the property was the property of the insolvents. It seems to us that Section 22 does not apply under the circumstances of the present case [see Jhunlu Lal v. Piari Lal (1916) I. L. R., 39 All., 204]. The lower appellate court has relied upon the case of Mul Chand v. Murari Lal (1913) I. L. R., 36 All., 8. The facts there were quite different. The property had not been attached in execution of a decree, but had been taken possession of by the receiver as being property belonging to the bankrupt.

2. We allow the appeal, set aside the decree of the lower appellate court and remand the case to that court, with directions to readmit the appeal and deal with it according to law. Costs here and heretofore will be costs in the cause.

3. Appeal decreed and cause remanded.


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