In Re: Umbica Nundun Biswas (an Insolvent)

Richard Garth, C.J.—We allowed the case to proceed in the hope that, as the parties have already incurred so much expense and trouble, we might have arrived at some satisfactory solution of it, which might obviate the probability of any further litigation. But the further we proceeded the more difficult and complicated the matters in dispute became; and we could no longer doubt that both as regards the facts and the law, some very serious questions of title and otherwise are at issue between the parties.

Under these circumstances, we felt that in the exercise of our discretion, we should be wrong in attempting to settle so serious a dispute in a summary proceeding u/s 26 of the Insolvent Act.

We behave that it has always been the practice of this Court to abstain from deciding difficult questions of title under that section and to leave the parties to settle such questions by a regular suit, and we entirely approve of that practice; see the case of In re Dwarkanath Mitter 4 B.L.R. O.C. 63.

The procedure u/s 26 is not calculated to effect satisfactorily the trial of difficult questions of title. And our judgment, even if we thought it right to decide the matter, would not be conclusive. Either party might, if they chose, raise the same question again in a regular suit.

We think, therefore, that this appeal should be allowed, but we think that under the circumstances the rule (obtained, as we consider it was, at the instance of Mr. Bonnerjee''s client) should be discharged without cost on either side, it being quite understood that we give no opinion as to the merits of the dispute.