Hans Raj Vs. Rattan Chand  INSC
85 (3 April 1967)
03/04/1967 MITTER, G.K.
CITATION: 1967 AIR 1780 1967 SCR (3) 365
CITATOR INFO :
RF 1979 SC 993 (4) F 1989 SC1179 (17) D 1991
Provincial Insolvency Act (Punjab Act 5 of
1920) ss. 4 & 68application against act of receiver alleging property,
taken over by him not of insolvent-whether an application under s.
4 or s. 68-Whether Imitation of 21 days it s.
The appellant's brother was adjudicated
insolvent by the Insolvency Judge, Barnala, Punjab on the 23rd November., 1954.
Two days later it Receiver in insolvency was appointed by the Court and was
directed to take possession of the property of the insolvent On the 26th and
27th November, 1954 the receive took possession of various properties and on
the 21st December, 1954, the appellant filed an objection application alleging
that some of the property belonged to him and was exclusively in his
possession. He therefore prayed for its release and restoration to him. The
insolvency Judge -rejected a contention that the application was time-barred
under s. 68 of the Act but held that the property did not belong to the
appellant. After first and second appeals to the District Judge, and a single
Bench of the High Court, a division Bench allowed a Letters Patent Appeal on
the ground that the appellant's application was. incompetent as barred by
In appeal to this Court the question for
determination was whether the appellant's application was one under s. 68 of
the Provincial Insolvency Act, and as such having been made beyond the period
of 21 days from the date of the act of the receiver complained of, was covered
by the proviso to that section. It was contended on behalf of the appellant
that the application was one under s. 4 of the Act in which there is no mention
of any period of limitation.
HELD : The application was one under s. 68
and was incompetent on the ground of limitation after the lapse of 21 days from
November 25, 1954.
A person complaining of the act of the
receiver may either apply under 68 or proceed under the ordinary law of the
land. Section 4 does not prescribe any application for relief under that
section. Its object is to,. define the limit,% of jurisdiction of the courts
exercising powers in insolvency. A question as to whether an insolvent has any
interest in the property attached by the receiver would fall within the purview
of s. 4, but the application for the adjudication of such a question when the
receiver acts otherwise than under the order of a court would be covered by s.
68 and as such the period of limitation of twenty-one days would be attracted
to any such application. Sub-s. (1) and sub-s. (2) of s. 4 both start with the
phrase "subject to the provisions of this Act" and even if it. was
possible to construe that s. 4 envisaged the making of an application for
relief, such application would be subject to s. 68 of the Act. [370F; 372E-G]
Daulat Ram v. Bansla A.I.R. 1937 Lahore page 2, approved-, Venkatarama v.
Angathayammal A.I.R. 1933 Madras 471, Heerabai v. Official Receiver A.I.R. 1963
Vellayappa Chettiar v. Ramanathan Chettiar
I.L.R. 47 Madras 446, G. N. Godbole v. Mr. Nani Bai A.I.R. 1938 Nagpur 546,
Muthupalaniappa 366 v. Raman Chettiar A.I.R. 1941 Madras 75; Mul Raj v.
Official Receiver A.I.R 1937 Lahore 297,
Ganda Ram v. Shiv Nand Ganesh Das A.I.R. 1937 Lahore 757; and Ma, Sein Nu v.
U. Mg. Mg. A.I.R. 1934 Rangoon 97; Bhairo
Prasad v. S. P. C. Dass, A.I.R. 1919 Allahabad 274, Hussain,' v. Muhammad Zamir
Abdi A.I.R. 1924 Oudh. 294 and Mul Chand v. Murari Lal, I.L.R. 36 Allahabad 8;
referred to Nathu Ram v. Madan Gopal, A.I.R. Allahabad 408;
CIVIL APPELLATE JURISDICTION : CIVIL APPEAL
No. 1000 of 1, 964.
Appeal from the judgment and order dated
November 28, 1962 of the Punjab High Court in Letters Patent Appeal No. 212 of
Bishan Narain and B. P. Maheshwari, for the
Naunit Lal, for respondent Nos. 1 to 3.
The Judgment of the Court was delivered by
Mitter, J. This is an appeal by a certificate against a judgment of a Division
Bench of the High Court at Chandigarh in Letters Patent Appeal No. 212 of 1961.
The High Court allowed the appeal on the ground that the application out of
which it arose was incompetent as barred by limitation and, in our opinion, it
did so correctly. The short question before us is, whether application leading
to this appeal was one under s. 68 of the Provincial Insolvency Act, and as such
having been made beyond the period of 21 days from the date of the act of the
receiver complained of, was covered by the proviso to that section ? In
substance, the argument on behalf of the appellant was that the application was
one under s. 4 of the Act in which there is no mention of any period of
The facts necessary for the disposal of this
appeal are as follows :-Brij Lal and Hans Raj were brothers. On an application
having been made by the creditors of Brij Lal in the year 1949, the insolvency
Judge, Barnala adjudicated him as an insolvent, on 23rd November, 1954. Two
days thereafter, one Mohinder Lal was appointed as a receiver in insolvency by
the order of the Court and lie was directed to take possession of the property
of the insolvent. On 26th and 27th November, 1954 the receiver took possession
of various properties of the insolvent and attached some urban property and
agricultural land which are the subject-matter of the present litigation. Hans
Raj filed an objection application on 21st December, 1954 alleging that the
property detailed therein belonged to him and was exclusively in his
possession. He prayed for release of the property from attachment and
restoration of possession to him. The receiver pleaded that he had taken possession
thereafter at the instance of two creditors. The insolvency Judge framed two
issues, namely, (1) Is 367 the objector owner of the suit property and in
possession thereof and is it accordingly not liable to be attached by the
receiver ? and (2) whether the objection petition was time-barred ? The learned
Judge decided the first issue against the objector but held that the
application was not covered by s. 68 of the Act. In appeal, the District Judge
differed from both the findings. He held that there had been no partition of
the joint Hindu family of the insolvent and his brother, but, on the point of
limitation he found against the objector. In the result, he accepted the appeal
and dismissed the objection petition. Hans Raj went up in Second Appeal to the
Punjab High Court. The learned single Judge of the High Court came to the
conclusion that the property in dispute must be deemed to be the separate
property of Hans Raj and held that the application was within time. Rattan Lal
who replaced the original receiver on the latter's death tiled a Letters Patent
Appeal to the High Court. The High Court, as already noted, held that the
Application of Hans Raj was not within time resulting in the dismissal of the
We must first consider the nature of the
application made by the objector and then find out whether it is covered by s.
68 of the Act. Section 4 of the Act on which
Great reliance was placed by learned counsel for the appellant is one of the
three sections in Part I of the Act i.e. ss. 3, 4 and 5.
Section 3 lays down that the District Courts
shall be the courts having jurisdiction under the Act. Section 4 defines the
jurisdiction of the Court and runs a.-, follows :"(1) Subject to the
provisions of this Act, the Court shall have full power to decide all questions
whether of title or priority, or of any nature whatsoever, and whether
involving matters of law or of fact, which may arise in any case of insolvency
coming within the cognizance of the Court, or which the Court may deem it
expedient or necessary to decide for the purpose of doing complete justice or
making a complete distribution of property in any such case.
(2)Subject to the provisions of this Act and
notwithstanding anything contained in any other law for the time being in
force, every such decision shall be final and binding for all purposes as
between, on the one hand, the debtor and the debtor's estate and, on the other
hand, all claimants against him or it and all persons claiming through or under
them or any of them.
(3)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 368 may without further inquiry sell such interest in such
manner and subject to such conditions as it may think fit." Section 5 lays
down the general powers of courts under the Act. Part 11 which has the heading
"Proceedings from the act of insolvency to discharge" deals generally
with the course of the proceedings in insolvency beginning from the acts of
insolvency to the order for discharge of insolvency. Part III is headed
"administration of property" and deals with different subjects like
method of proof of debts, effect of insolvency on antecedent transactions,
realisation of property, distribution of properly" and lastly
"appeals to court against receiver". The last topic is covered by s.
68 which provides as follows :"If the insolvent or any of the creditors or
any other person is aggrieved by any act or decision of the receiver, he may
apply to the Court, and the Court may confirm. reverse or modify the act or
decision complained of, and make such order as it thinks just :
Provided that no application under this
section shall be entertained after the expiration of twenty-one days from the
date of the act or decision complained of." Part IV deals with penalties,
Part V with summary administration, Part VI with appeals and Part Vll with
topics like costs, power to make rules, etc.
Under s. 20 (contained in Part 11) the court
when making, an order admitting the petition may, and where the debtor is the
petitioner ordinarily shall appoint in interim receiver of the property of the
debtor or of any part thereof and the interim received, shall thereupon have
such of the powers conferable on a receiver appointed under the Code of Civil
Procedure as the court may direct. If an interim receiver is not so appointed,
the court may make such appointment at any subsequent time before adjudication.
Under s. 21, at the time of making an order admitting the petition or at any
subsequent time before adjudication the court may either of its own motion or
on the application of any creditor make orders to suit the occasion. namely,
direct the attachment by actual seizure of the whole or any part of the
property in the possession or under the, control of the debtor, order a warrant
to issue with or without bail for his arrest, or order the debtor to reasonable
security for his appearance until final orders are made on the petition. Under
s. 28(2) on the making of an order of adjudication ', the whole of the property
of the insolvent is to vest ill the court or in a receiver as provided in the
Act and become divisible among the creditors in terms of the Act. Under s.
56(1) the court may at the time of the order of adjudication or at any time
afterwards, appoint a receiver for the property of the insolvent, and 369 such
property shall thereupon vest in such receiver. Under subs. (3) of the section,
where the court appoints a receiver, it may remove the person in whose
possession or custody any such property as aforesaid is from the possession or
custody thereof but nothing in this section is to be deemed to authorise the
court to remove from the possession or custody of property any person whom the
insolvent has not a present right so to remove. Under subs. (5) the provisions
of this section shall apply so far as may be to interim receivers appointed
tinder s. 20.
It will be noted from the above that S. 4,
sub-s. (1) lays down the ambit of the powers of the court exercising insolvency
jurisdiction. Its primary object is to empower such courts to decide all
questions whether of title or priority or of any nature whatsoever and whether
involving matters of law or fact which may arise in any case of insolvency
coming within the cognizance of the court. In other words, the aim of this
provision is that all questions of title or priority arising in insolvency
should primarily be disposed of by the insolvency courts so as to achieve
expedition. It will be noted at once that resort to ordinary courts of law is
not proscribed and at the same time the legislature provided that a person
could resort to the insolvency court if the matter arose in insolvency proceedings.
Under sub-s. (2) however every such decision arrived at by the insolvency court
was to be final and binding for all purposes as between on the one hand, the
debtor and the debtor's estate, and, on the other hand, all claimants against
him or it and all persons claiming through or under them or any of them. This
provision is however subject to the other provisions of the Act and notwithstanding
anything contained in any other law for the time being in force. It is also to
be noted that this section does not lay down what procedure or what steps
should be taken by any person who is aggrieved by any order of the insolvency
court or of any act or omission or commission of the receiver.
Section 20 of the Act empowers the court to
appoint an interim receiver of the property of the debtor as soon as an order
is made admitting the petition. For the preservation of the insolvent's
property, the court may direct such interim receiver to take immediate
possession of the whole or any part thereof. A duty is therefore cast on the
interim receiver to see that the property of the debtor is not lost and for
that purpose lie must act quickly. As it is not possible for him except on the
application of the debtor to know all the details of the insolvent's property,
lie may take the help of the creditors to ascertain what they are. In this
case, on the day of the making of the order for adjudication, the court did not
appoint a receiver but did so two days afterwards directing him to take
possession of the property of the insolvent. It is possible that the receiver
may be misled by the creditors and he may attach 370 properties in which as a
matter of fact, the insolvent has no interest. In such a case, the stranger to
the insolvency proceedings is not without a remedy. He need not resort to the
ordinary and dilatory proceedings by filing a suit and getting an adjudication
of title to his property, removal of the attachment, etc. Section 68 is aimed
at giving him speedy relief by enabling him to make an application to the court
straight way against any act or decision of the receiver and asking for
appropriate relief. If however the party aggrieved seeks to benefit by this
provision, he must also bring his case within the four corners of the section
and prefer his application within 21 days from the date of the act or decision
of the receiver complained of. When the receiver does an act under the express
directions or orders of the court, an application by a third party complaining
thereof does not fall within S. 68 because the receiver's act is a ministerial
one. The aggrieved person is however not without a remedy. He can inter alia
apply to the insolvency court for undoing the wrong complained of and the court
can give such relief as the circumstances may call for. The jurisdiction of the
court and the ambit of its powers are as contained in s. 4 which however does
not Jay down any procedure for obtaining such relief. It is not therefore
correct to describe an application for relief as one under s. 4.
Leaving aside the decisions which were cited
at the Bar, it appears to us, on a plain reading of the sections mentioned
above and in particular, ss. 4 and 68, that there can be no doubt that a person
(like the appellant before us) complaining of the receiver taking possession of
or attaching property in which the insolvent has no interest, must apply for
relief within 21 days of the wrongful act of the receiver. He cannot be heard
to say that his application is not under s. 68 but under s. 4 and thus seek to
avoid the short period of limitation prescribed under s. 68.
Moreover, subs. (1) and sub-s. (2) of S. 4
both start with the phrase "subject to the provisions of this Act"
and even if it was possible to construe that s. 4 envisaged the making of an
application for relief, such application would be subject to S. 68 of the Act.
We may now consider some of the decisions
cited at the Bar for or against the proposition put forward on behalf of the
The sheet anchor of the appellant's case is
the decision of the Allahabad High Court in Nathu Ram v. Madan Gopal(1).
There the Official Receiver, in pursuance of
an order of the insolvency court, attached a property on 8th June 1929. On 2nd
July following, the son of the insolvent applied to the insolvency court
alleging that the property belonged to him and not the insolvent. The court
decided in favour of the son but was not called upon to go into the question as
to whether the application was within time.
(1) A.I.R. 1932 Allahabad 408.
371 This quest-ion of limitation was raised
before the District Judge and the objection was over-ruled by him. It was
observed by a Division Bench of the Allahabad High Court:
"The house was attached under an order
of the Insolvency Court, and not by any independent decision of the Official
Receiver. The actual attachment was a mere ministerial act done in pursuance of
the order of the Court. The objector was not challenging the act of the
receiver, who had no voice in the matter, but the order of attachment passed by
the Court ex parte. It seems to us that it was not an act or decision of the
receiver within the meaning of s. 68. On the other hand, it was a claim put
forward by a stranger to the insolvency proceedings setting up his own
independent title, and it fell within the scope of s. 4, Provincial Insolvency
Act." The learned Judges distinguished the cases of Bhairo Prasad vs. P.
C. Dass(1) and Hussaini v. Muhammad Zamir Abdi(2) on the ground that in those
cases there was no order of the court directing attachment but the act complained
of was an act of the receiver himself.
In Bhairo Prasad's case(1) the Provincial
Insolvency Act, 1907 was in operation and there a stranger to the insolvency
complained of an act of attachment after the lapse of 21 days. A Division Bench
of the Allahabad High Court held that the application was barred by limitation
observing at the same time :
"A stranger to the insolvency is not
bound to go to the Insolvency Court at all. He has the ordinary right, which
every individual has, to seek redress in the ordinary civil courts for any
grievance or trespass to his property, whether committed by an Official
Receiver or anybody else, but he can, if he pleases, if he complains against
the act of the receiver, apply under s. 22 to the insolvency court itself. . . .
But similarly if he applies under s. 22, he must comply with the terms of s.
22." In Mt. Husaini Bibi's case(3) certain houses were proclaimed for sale
on 14th June 1922 and on last July the appellant, the wife of the insolvent,
put in a claim that the properties belonged to her. The insolvency court
referred the appellant to the civil court and a suit was filed on 4th July
1922. The properties were sold by the receiver on 5th July before an injunction
of the civil court restaining a sale could be served on the receiver. On 3rd
August 1922 the appellant applied to the District Judge for the cancellation
,if the sale. This was dismissed. The subject of appeal before the (1) A.I.R.
1919 Allahabad 274.
(2) A.I.R. 1924 Oudh 294.
CI/67-11 A.I.R. 1924 Oudh 294.
372 High Court was the order of dismissal.
The learned single Judge relied upon Bhairo Prasad's case(1) and observing that
the application presented on 3rd of August was apparently one under S. 68 of
the Act held that it was barred before the 3rd of August.
It was further pointed out that a stranger to
the insolvency may seek his redress in ordinary civil court when aggrieved by
any act of the Official Receiver, or he may apply under S. 68 of the Act
(corresponding to s. 22 of the previous Act). Reference may also be made to an
earlier decision of the A llahabad High Court in Mul Chand v. Murari Lal(2).
There the receiver in insolvency seized
certain movable property on the information laid by one of the creditors as
property of the insolvents. The appellant before the High Court claimed that
the property was his and presented an objecting purporting to be one under 0.
XXI r. 58 of the Code of Civil Procedure. This was dealt with by the Second
Additional Judge of Meerut on the merits who after taking evidence came to the
conclusion that the property seized belonged to the insolvents and dismissed
the appellant's application. The Allahabad High Court pointed out that the
appellant's position was that of a person -aggrieved by an act of the receiver
and his remedy was by an application under S. 22 of Act III of 1907.
These decisions, in our opinion, do not
assist the appellant on whose behalf it was argued that an application might be
made either under S. 68 or under s. 4 of the Act. It is clear from the above
decisions that a person complaining of the act of the receiver may either apply
under S. 68 or proceed under the ordinary law of the land. Section 4 does not
prescribe any application for relief under that section. Its object is to
define the limits of jurisdiction of the courts exercising powers in
insolvency. It is not correct to say that a person aggrieved by an act of the
receiver has the choice, of making an application under s. 4 or under s. 68.
Section 4 comes into operation whenever any
question of the nature mentioned therein is sought to be canvassed before a
court exercising insolvency jurisdiction. Such questions may arise because of
acts or decisions of the receiver complained of. A question as to whether an
insolvent has any interest in the property attached by the receiver would fall
within the purview of S.
4, but the application for the adjudication
of such a question when the receiver acts otherwise than under the order of a
court would be covered by s. 68 and as such the period of limitation of
twenty-one days would be attracted to any such application.
Mr. Bishan Narain referred us to a few
decisions of different High Courts as illustrating his proposition that
applications are permissible under s. 4 of the Provincial Insolvency Act. In
Vellayappa Chettiar v. Ramanathan Chettiar (2) cited on behalf of the (1)
A.I.R. 1919 All. 274.
(2) I.L.R. 36 Allahabad 8.
(3) I.L.R. 47 Madras 446.
373 appellant, the facts were as follows. The
respondent obtained a mortgage decree against a person who was subsequently
adjudicated an insolvent and the Official Receiver assumed jurisdiction over
his properties. While the latter was taking steps to realise the assets, the
appellant asserted that some of the properties covered by the mortgage decree
were his and denied the right of the insolvent to such properties, at the same
time, preferring a claim petition before the Official Receiver.
The Receiver enquired into the same and
allowed it. Against that order, the mortgagee-decree holder filed a petition
before the District Judge under s. 68 who set aside the order of the Official
Receiver and further directed that the claim petition also do stand dismissed.
The claimant went up in appeal to the Madras High Court. The learned Judges of
the Madras High Court said that the whole of the proceedings was misconceived
observing that the Official Receiver had no power to make any order in a claim
petition as this was not a power delegated to him under s. 80 of the Provincial
Insolvency Act of 1920.
According to the High Court, if the claimant
wanted to prevent the sale of the property as belonging to the insolvent, he
should have applied to the District Judge direct to take action under s. 4 of
the Act. He did not however do so. In the result, the High Court set aside all
the proceedings in the lower court and left the parties in status quo ante,
commenting at the same time, that if the claimant found that the Official
Receiver proposed to sell the properties he might apply to the District Judge
under s. 4 of the Act.
The last portion of the above paragraph was
quoted as supporting the proposition that an application lay under s. 4 of the
Act. That is not what the learned Judges of the Madras High Court meant. In our
view, what was meant was that the claimant might make an application to the
District Judge who would under s.4 of the Act have jurisdiction to pass a
proper order thereon.
Our attention was also drawn to the case of
Venkatarama v.Angathayammal(1) where t he above Madras decision was cited and
at more than one place, the learned Judge used the expressions "an
application under s. 4" and "an appeal under s. 68". With all
respect to, the learned Judge, it seems, to us that these expressions were not
accurate for s. 68 although headed "appeals to court against
receiver" does not, as a matter of fact, use the word "appeal"
in the body of the section. The application under s. 68 however in reality
amounts to an appeal to a court from a decision of the receiver but the section
itself lays down that the party aggrieved must "apply to the court".
Similarly, a proceeding in which jurisdiction under S. 4 may be exercised is
not an application under S. 4.
The proceeding has to be started by way of an
application whenever anybody seeks to have an adjudication by the court of the
nature described in S. 4.
((1) A.I.R. 1933 Madras 471.
374 In this connection, our attention was
drawn to several other decisions; it is not necessary to go into the facts of
these cases. In G. N. Godbole v. Mt. Nani Bai(1) and Muthupalaniappa V. Raman
Chettiar(2), the expression "proceedings under S. 4" had been used
while in Heerabai v. Official Receiver 3 ) the petitioner before the High
Court, mother of the two insolvents, laid a claim to 1/3rd share in the
properties which the Official Receiver sold on 16th April, 1960 purporting to
be those of the insolvents. According to the judgment "the petitioner
filed I.A. No. 1900 of 1960 on 28-6-1960 purporting to be under ss. 4 and 68 of
the Provincial Insolvency Act." She also filed I.A. No. 1899 of 1960 for
condoning the delay in filing this application as ordinarily "the appeal
68 should have been filed by her on or before
5-7-1960". The insolvency court held in the proceedings under s. 68 that
there could be no condonation of delay but failed to ascertain with reference
to the nature of I.A. No. 1900 of 1960 whether it fell under s. 4 of the
Provincial Insolvency Act. The learned Judge found that the petitioner had not
made any claim before the Official Receiver and even if she chose to make any
such claim, the Official Receiver had no power whatever to decide upon such
claim petitions. It was observed :
"Therefore, an application such as I.A.
No. 1900 of 1960 cannot be taken in any sense to be an appeal against the act
of the Official Receiver as such. On the other hand, when the petitioner herein
wanted that her share should be untouched, it is certainly a case w here the
petitioner approached the court to determine the question of her title, which
it is competent to do only under s. 4 of the Provincial Insolvency Act.
Therefore, in my view, it is idle to contend that I.A. No. 1900 falls within
the purview of s. 68, and that it should be taken to be an appeal and not an
application which is contemplated and competent under s. 4 of the Provincial
Insolvency Act." It is difficult to accept the soundness of some of the
dicta in the above judgment. The Official Receiver's act in selling the
property on 16-4-1960 may have been wholly wrong, but if the petitioner wanted
the same to be set aside, she could either have made an application under s. 68
to the court or she could have filed a suit for relief under the ordinary law
of the land. She could not, after a period of 21 days, start a proceeding in
the insolvency court describing it as one under s. 4 so as to get out of the
bar of limitation imposed by S. 68. She need not have waited till the sale of
property. She might have applied to the court as soon as the receiver took the
first step by attaching the property.
(1) A.I.R. 1938 Nagpur 546. (2) A.I.R. 1941
(3)A.I.R. 1963 A.P. 296.
375 In our opinion, Jai Lal, J. correctly
pointed out the correlation between ss. 4 and 68 in Daulat Ram v.
Bansilal(1). The appellant had a money decree
against the insolvents which he executed by attachment of a moiety of a share
in a house which he alleged belonged to the judgmentdebtors. This was before
the order of adjudication. An objection was raised by the respondent, Bansilal,
that he was a purchaser for consideration of the attached property.
The objection having been allowed, a suit was
filed under O. 21, r. 63 C.P.C. by the attaching decree-holder and ultimately
decreed, it having been held that the sale by the judgment-debtors was
fraudulent as against the creditors.
The receivers in insolvency then took
possession of the property attached by the appellant and sold the same in the
insolvency proceedings. Bansilal thereupon made an application under s. 68 on
the ground that the action of the receivers was illegal. The District Judge
allowed the application holding that the decree passed in the suit under O. 21
r. 63 was operative only so far as the execution proceeding's were concerned
and that it did not enure for the benefit of the other creditors. He therefore
set aside the sale by the receivers. The creditors including the appellant came
up in appeal from the order of the District Judge. An objection was raised by
the respondents that no appeal lay without the leave either of the District
Judge or of the High Court. In disposing of this, Jai La], J.
"I am inclined to think that though the
District Judge was moved under s. 68 which is not one of the sections mentioned
in Sch. 1, the investigation, which he is expected to make in a case like, the
present, should be under s. 4, Provincial Insolvency Act, and any order passed
by him under s. 4 is appealable as of right to this Court." An observation
similar to the above was made, by the same learned Judge in Mul Raj v. Official
Receiver (2 ) . This point was also brought out in Ganda Ram v. Shiv Nand
Ganesh Das(3). The scope of the two sections was brought out even more clearly
in a judgment of the Rangoon High Court in Ma Sein Nu v. U Mg. Mg.(4) where it
was said :
"Now, s. 4 defines the powers of the
Insolvency Court to decide questions of law and fact arising in insolvency
proceedings, but it does not lay down how the court is to be moved to exercise
those powers. . . . . of course, the powers of the court in deciding such an
application are defined in s. 4, but this does not mean that the application
itself is made under s. 4, and clearly it cannot be for s. 4 contains no
provision as to how the court is (1) A.I.R. 1937 Lahore page 2.
(3) A.I.R. 1937 Lahore 757.
(2) A.I.R. 1937 Lahore 297.
(4) A.I.R. 1934 Rangoon 97.
376 to be moved to exercise its powers, and
for the mode of invoking the authority of the Court other provisions of the
Act, such as ss.
53, 54 and 68, have to be consulted." In
the result, we hold that the application being one under s. 68 was incompetent
on the ground of limitation after the lapse of 21 days from November 25, 1954. The appeal is therefore dismissed with costs.