Guntapalli Narasimhaya and Others vs Marlapati Veeraraghavulu and Others

Abdur Rahim, J.—This appeal arises in certain insolvency proceedings in the mufassal Court to which the Provincial Insolvency Act III of

1907 applies. A man called Venkatakrishnayya was declared insolvent and the receiver who was appointed in insolvency sold some property

which was alleged to belong to the insolvent and to have been mortgaged by him to the first respondent and in that sale, the first respondent bought

the property. When, the purchaser the first respondent, wanted to take possession, he was obstructed by the appellants before us who claimed

title to the property in their own right and also alleged that they had been for a long time in possession of the land. The District Judge purporting to

act u/s 47 of the Provincial Insolvency Act has held a summary enquiry and directed that the purchaser, the first respondent, be put in possession

of the land. We do not think that Section 47 of the Insolvency Act authorized the District Judge to act in this manner and by a summary proceeding

to order the appellants to deliver possession of the laud to the first respondent. Section 47 says:

Subject to the provisions of this Act, the Court in regard to proceedings under this Act shall have the same powers and shall follow the same

procedure as it has and follows in the exercise of original civil jurisdiction.

What this section lays down is the procedure to be followed by the Insolvency Judge with regard to proceedings had under this Act. But the

''proceedings'' referred to means the proceedings of the Court and not the act of a receiver done u/s 20 of the Insolvency Act. The powers given

to the receiver u/s 20 are exercised by him standing in the shoes of the insolvent in the interests of the creditors. He does not in any way act as a

Court and whatever he does in this connexion he does merely on behalf of the insolvent. The learned Counsel for the respondent has asked us to

say that u/s 47 the District Judge sitting in the Insolvency Court is empowered to try this matter as one in execution of a decree. To that the simple

answer is that there was no decree for execution. There was no decree at all in the case and it would be going much too far to say that a judge in

insolvency in the mufassal has powers by a summary proceeding to decide questions of title with respect to property which is claimed by third

persons. The two Calcutta decisions Minatoonnessa Bibee v. Khatoonessa Bibee ILR (1894) Calc. 479 and Golam Hossein Cassim Arif v.

Fatima Begam (1910) 6 I.C. 300, which were cited by the District Judge in support of his view were not under the Insolvency Act at all. They

were rulings in connexion with questions arising in the execution of decrees under the Civil Procedure Code. On the other hand there is a ruling of

the Allahabad High Court in Cheda Lal v. Lachman Parshad (1917) 37 I.C. 830, which enunciates the same view as we have suggested.

The appeal is allowed and the judgment of the District Judge must be set aside and the first respondent''s petition dismissed with costs

throughout.