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Abdul Majid and ors. Vs. Abdul Haq and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal263
AppellantAbdul Majid and ors.
RespondentAbdul Haq and ors.
Excerpt:
- .....a suit to have the order passed by the insolvency judge set aside. the order which the insolvency judge passed under section 4, sub-section (3), insolvency act, was more for an expeditious disposal of the assets than any other purpose. a perusal of sub-section (3) would show that before an insolvency court passed an order to sell an interest, it does not actually hold that the petitioner for insolvency has such saleable interest. if the court has any reason to believe that the petitioner for insolvency has such saleable interest, it can pass an order under sub-section (3). art. 13, limitation act, could not therefore, in my opinion, stand as a bar to the plaintiff's suit.3. the only substantial contention urged before us on behalf of the appellants therefore fails. the appeal will.....
Judgment:

Mallik, J.

1. The suit that has given rise to this second appeal was for declaration of the plaintiff's title to certain tea garden shares. The allegations on which the suit was instituted were that the tea garden shares had been purchased with plaintiff's money and that in an insolvency proceeding started by one of the defendants the petitioner for insolvency had claimed a certain interest in these tea shares, with the result that a cloud had been thrown on the plaintiff's title to those shares. The defence inter alia was that the shares were not the exclusive property of the plaintiff, but were the property of a firm of which the plaintiff and the defendants were the partners and that the plaintiff's suit having been instituted more than one year after the order had been passed by the insolvency Court in respect of the shares under Section 4, Provincial Insolvency Act, the plaintiff's suit was barred under Article 13, Limitation Act. Both these points taken by the defence were found by the Courts below against the defendants with the result that the suit was decreed in plaintiff's favour. The defendants have appealed to this Court.

2. On behalf of the appellants it was in the first place contended that the lower appellate Court was wrong in not having found that the tea garden shares were the joint property of the plaintiff as well as of the defendants. The question whether the shares were the exclusive property of the plaintiff or the joint property of the plaintiff as well as of the defendants was a question of fact, and the learned Additional District Judge in his judgment clearly found that the plaintiff was the sole owner of the garden shares in suit. The main contention of the learned advocate for the appellants however was on the question of limitation. His point as would appear from what I have stated before was that Article 13, Limitation Act, operated as a bar to the plaintiff's suit. We do not think that there is much substance in this contention. The plaintiff instituted his suit not to have the order of the insolvency Court, whereby it had simply directed that the shares might be sold, set aside, but to have his title to these shares declared. The order which the insolvency Court passed was no doubt an order passed under Section 4, Insolvency Act. But it was an order passed not under sub Section (2), but under Sub-section (3) of that section. A perusal of the order passed by the insolvency Judge would show that he did not consider it necessary to decide the question of title, which question was left undecided to be decided by a competent civil Court. Having regard to that observation in the order passed by the insolvency Judge and regard being had also to the fact that all that the insolvency Judge ordered at the time was to sell the interest of the defendants in the shares whatever that interest might be the suit brought by the plaintiff was not, in my opinion, a suit to have the order passed by the insolvency Judge set aside. The order which the insolvency Judge passed under Section 4, Sub-section (3), Insolvency Act, was more for an expeditious disposal of the assets than any other purpose. A perusal of Sub-section (3) would show that before an insolvency Court passed an order to sell an interest, it does not actually hold that the petitioner for insolvency has such saleable interest. If the Court has any reason to believe that the petitioner for insolvency has such saleable interest, it can pass an order under Sub-section (3). Art. 13, Limitation Act, could not therefore, in my opinion, stand as a bar to the plaintiff's suit.

3. The only substantial contention urged before us on behalf of the appellants therefore fails. The appeal will accordingly stand dismissed with costs.

Pearson, J.

4. I agree.


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