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Chandra Nath Sen and anr. Vs. Nagendra Nath Ganguly - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal263a
AppellantChandra Nath Sen and anr.
RespondentNagendra Nath Ganguly
Cases ReferredHanseswar Ghosh v. Rakhal Das Ghose
Excerpt:
- duval, j.1. these two rules have been obtained against an order of the district judge of 24 pargannas holding that an application to enquire into and rectify certain acts of the receiver in an insolvency case was out of time and so could not be entertained. it appears that in a certain insolvency case a receiver was appointed and he attached from the bargadars of one of the petitioners' paddy and sold it as being the property of the insolvent and in the other case he attached certain furniture. it appears that he also warned the tenants not to pay any more rent except to himself. the two petitioners feeling aggrieved at this order moved the district judge, but he held that the matter came under section 68, provincial insolvency act, and so, as the application was made more than twenty one.....
Judgment:

Duval, J.

1. These two Rules have been obtained against an order of the District Judge of 24 Pargannas holding that an application to enquire into and rectify certain acts of the Receiver in an insolvency case was out of time and so could not be entertained. It appears that in a certain insolvency case a Receiver was appointed and he attached from the bargadars of one of the petitioners' paddy and sold it as being the property of the insolvent and in the other case he attached certain furniture. It appears that he also warned the tenants not to pay any more rent except to himself. The two petitioners feeling aggrieved at this order moved the District Judge, but he held that the matter came under Section 68, Provincial Insolvency Act, and so, as the application was made more than twenty one days after the Receiver had taken possession of the properties, the matter was barred.

2. Thereupon applications were made to this Court and two Rules obtained on 24th June 1927. Subsequently, it appears that, in July the two petitioners appeared before the District Judge and applied for leave to appeal to this Court against his order and the Judge granted them leave.

3. A preliminary point is taken and it seems to me one of substance that as the order of the District Judge in these two matters is appealable, Section 115, Civil P.C., has no application. Now, it is clear to my mind that the case must at least come under Section 75(3) which makes it appealable to this Court by leave. Even if it did not become appealable by leave lit is a matter decided by the Judge under Section 4 and is appealable. It is urged, however, for the petitioners that somehow or other they are strangers and not persons aggrieved, and in this connexion I am referred to the case of Hanseswar Ghosh v. Rakhal Das Ghose [1914] 18 C.W.N. 366, but whether a person is aggrieved or not appears to be a question of fact and I cannot believe that a man whose paddy has been taken away and a man who has had his furniture taken away are not people who are aggrieved. I must, therefore, hold that the Rules must be discharged as an appeal lies, a fact which the learned Judge himself has admitted and the petitioners have admitted.

4. I, therefore, discharge both the Rules with costs to the Receiver; hearing-fee one gold mohur in each case.

5. Let the records be sent down as early as possible.


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