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Raj Rani Bari SinghaIn Vs. Jawahir Lal Madan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All158; 108Ind.Cas.156
AppellantRaj Rani Bari Singhain
RespondentJawahir Lal Madan Lal and ors.
Excerpt:
- - on 9th october 1923 behari lal was adjudged an insolvent, and on the same date the court ordered the receiver to take possession of the property previously attached as well as certain other properties of behari lal. under section 4, act 5, 1920 the insolvency court acts like a civil court and its order is binding on the plaintiff. the result therefore is that this appeal must fail and is dismissed with costs......and enclosure in dispute in the present case were attached before judgment. on 25th june 1923 mt. rajrani filed a petition under order 21, rule 58, before the subordinate judge alleging that her deceased husband was separate from behari lal, and that the property belonged to her. before this objection could be disposed of, behari lal filed an application to be adjudicated an insolvent; and a creditor applied that the district judge should hear the objection filed by mt. rajrani before the subordinate judge. on 9th october 1923 behari lal was adjudged an insolvent, and on the same date the court ordered the receiver to take possession of the property previously attached as well as certain other properties of behari lal.2. mt. rajrani filed a fresh objection before the district judge with.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit for declaration of title. The plaintiff is the widow of Daulat Singh, deceased, whose brother is Behari Lal. In 1923 a suit was brought against Behari Lal, and on 15th May 1923 the house and enclosure in dispute in the present case were attached before judgment. On 25th June 1923 Mt. Rajrani filed a petition under Order 21, Rule 58, before the Subordinate Judge alleging that her deceased husband was separate from Behari Lal, and that the property belonged to her. Before this objection could be disposed of, Behari Lal filed an application to be adjudicated an insolvent; and a creditor applied that the District Judge should hear the objection filed by Mt. Rajrani before the Subordinate Judge. On 9th October 1923 Behari Lal was adjudged an insolvent, and on the same date the Court ordered the receiver to take possession of the property previously attached as well as certain other properties of Behari Lal.

2. Mt. Rajrani filed a fresh objection before the District Judge with regard to these other properties which had been seized by the receiver. No fresh objection appears to have been filed by her with regard to the property which had been previously attached before judgment. It is not disputed that the receiver obtained possession of both sets of properties. On 2nd January 1924 the District Judge disposed of both the objections by one order dismissing both the claims. In his order he has pointed out that there is a claim by the widow for release of a certain property seized as Behari Lal's by the receiver, and with it is combined her claim to other properties seized in execution before the insolvency. He went into the evidence and found that the two brothers were joint and that therefore Mt. Rajrani had no interest in the property.

3. Mt. Rajrani preferred an appeal from this order to this Court which was dismissed under Order 41, Rule 11. Presumably she appealed only from the order relating to the objection raised by her to the attachment by the receiver. Mt. Rajrani has now filed the present suit for a declaration which has been dismissed by the learned Subordinate Judge on the ground that in view of the order of the insolvency Court the suit was not maintainable.

4. As regards the property which had been seized by the receiver during the insolvency proceeding's and the objection which was disposed of by the insolvency Court the position is quite clear, and that order is final. Under Section 4, Act 5, 1920 the insolvency Court acts like a civil Court and its order is binding on the plaintiff.

5. As regards the order passed on the objection filed by Mt. Rajrani under Order 21, Rule 58, Civil P.C. it appears that the said objection was on the application of a creditor Hira Lal transferred by the execution Court to the District Judge who was dealing with the insolvency matter. There is no distinct order by the District Judge transferring this case to his own file but he obviously treated it as having been duly transferred to him, and disposed of it. Nevertheless the order must be deemed to be passed on an objection raised under Order 21, Rule 58, Civil P.C. Under Rule 63, Civil P.C., such an order is not absolutely final. We are therefore of opinion that a separate suit in respect of the property covered by the objection under Order 21, Rule 58 was maintainable.

6. At the same time the finding of the insolvency Court in the other proceedings that Mt Rajrani's husband Daulat and his brother Behari Lal were joint and not separate operates as res judicata between the parties. It is no longer open to Mt. Rajrani to challenge that finding. The result therefore is that this appeal must fail and is dismissed with costs.


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