Nasim Ali, J.
1. This appeal is against the order of the Additional District Judge of Howrah, dated 23rd December 1925 and arises out of a proceeding under Section 4, Provincial Insolvency Act. The learned Additional District Judge has made an order under Sub-section 3 of that section and has directed the receiver in insolvency to sell whatever right, title and interest the insolvent might have in the property which was the subject-matter of the proceeding under Section 4. Sub-section 3 of Section 4, Provincial Insolvency Act, is in these terms:
Where the Court does not deem it expedient or necessary to decide any question of the nature referred to in Sub-section (1) but has reason to believe that the debtor has a saleable interest in any property, the Court may without further inquiry sell such interest in such manner and subject to such condition as it may think fit.
2. There is no express finding by the learned Judge that he had reason to believe that the debtor has a saleable interest in the property. The only reason in support of his order under Sub-section 3 is that the appellant who claims the disputed property on the basis of a purchase from the insolvent on 14th August 1930, preferred a claim to the attachment of the said property in Money Execution Case No. 184 of 1930 in the first Court of the Munsif at Howrah and allowed the said claim to be dismissed for default, on 17th January 1931. Apparently the Judge was of opinion that as the appellant (the transferee), did not bring any suit under Order 21, Rule 63 for establishing his right to the property within the time prescribed by law, the order of the executing Court rejecting his claim as benamidar was final and consequently it was neither expedient nor necessary to decide the question of title in the present proceeding again. It appears however that after the claim case was dismissed for default, the execution case itself was dismissed and the attachment was withdrawn on 27th February 1931. The appellant was not therefore bound to institute a regular suit for setting aside the order made in the claim case. The position then is that the appellant preferred a claim to the property on the basis of his purchase from the insolvent after the property was attached in execution of a money decree. That claim was not investigated but was dismissed for default and the order dismissing the claim for default is neither final nor conclusive. 'Under the circumstances we are of opinion that it is not only expedient but necessary that the question of title to the property in question should be decided in the present suit under Section 4, Provincial Insolvency Act.
3. The result therefore is that this appeal is allowed. The order of the learned Additional District Judge dated 23rd December 1935 is set aside and the case is sent back to him. He is directed to investigate the question of the appellant's title to the disputed property under Section 4(1), Provincial Insolvency Act, according to law after giving the parties sufficient opportunity to adduce evidence in support of their respective cases. Costs in this appeal will abide the result, hearing fee being assessed at two gold mohurs.
4. I agree.