Rankin, C.J:— This case raises some interesting questions. It is a case where the judgment-debtor had suffered a money decree and it seems that in September 1927 an application to adjudicate him an insolvent under the Provincial Insolvency Act was presented to the appropriate Court. Before any order was made, the decree-holder on 13th February 1928 applied for execution. On 12th April sale of certain property was held and on a day in May that sale was confirmed. On 8th May the insolvency Court appointed an interim receiver, that is to say, a receiver in whom nothing vests but who has the powers of a receiver under the Code of Civil Procedure. On 10th May this interim receiver applied to set aside the sale. He appears to have made a case under O. 21, R. 90 of the CPC, but he also made a case to the effect that, as there were proceedings in insolvency, the sale should be set aside. I pause here to observe that he was too late on any possible view to take advantage of Section 52 of the Provincial Insolvency Act, which is applicable only where notice is given to the Court in time and before the sale. On 26th June an order of adjudication was made and the interim Receiver was appointed receiver in the full sense of the word and the insolvent's property vested in him under the statute for the benefit of the creditors. Originally, the application of the interim receiver made on 10th May was allowed and the sale was set aside on 25th July. In September, the decree-holder applied for a review of this order and the learned Munsif set aside the order and restored his previous order confirming the sale. From this, there was an appeal by the receiver to the District Judge and there was a certain amount of objection to the effect that no appeal lay against an order granting a review to which the answer which prima facie seems to me to be a good one was that it was not an appeal against the order granting a review but against the order made upon the review, namely, confirming the sale setting aside the previous order. However the learned District Judge also dismissed the appeal on merits. Prom that order the present appeal is filed. As a matter of fact, leave has been given under Section 5 of the Lim. Act, extending the time for an appeal in view of what was said by the Division Bench before whom an application under Section 115 of the CPC, was made. We have however to consider whether the order of the District Judge refusing to interfere with the order discharging the order setting aside the sale is correct.
2. Now the first question which arises is whether or not there is any second appeal. In so far as the receiver's application was an application by a person interested under R. 90, O. 21, it is clear that there is no second appeal. We have therefore to see whether the receiver's application to set aside the sale can be looked at in any other view.
3. A good deal has been said upon the question whether the receiver under the Provincial Insolvency Act is a representative of the judgment-debtor for the purposes of Section 47 of the CPC. There is a good deal of authority in cases exactly like this to the effect that he is not a representative and the matter has been dealt with in the cases of Kashi Prasad v. Miller . [1885] 7 All. 752; C.E Grey v. Hazari Lal* . [1908] 30 All. 486, Sardarmal Jagonath v. Aran Vayal Sabhapatty . [1897] 21 Bom. 205.; Chandmull v. Banee Soondary Dasi . [1895] 22 Cal. 259.; Miller v. Lukhi Moni Debi . [1901] 28 Cal. 419; Frederick Peacock v. Madan Gopal & Ors . [1902] 29 Cal. 428 and the Official Assignee, Madras v. Aiyu Dikshithar . A.I.R 1925 Mad. 688. It appears to me that any general statement to the effect that a receiver is or is not a representative for the purposes of S. 47 of the Code is necessarily misleading. It all depends on the purpose and nature of the application made by the receiver whether he is a representative of the judgment-debtor or not.
4. For some purposes, he would be entitled as representing the judgment-debtor to litigate matters under S. 47 of the Code; but where he comes to the executing Court for the purpose of saying that as the judgment-debtor's property now belongs to the receiver the Court cannot sell for the judgment-debtor's debt that which is the property of another person because it has vested in the receiver for the benefit of the creditors, then, for that purpose, the receiver is not, in my judgment a representative of the judgment-debtor and the cases which I have referred to are, in my judgment, correct in that respect. The receiver in such a case, if he is not acting under S. 52 of the Act, but acting under the usual provisions of the Code of Civil Procedure is really a third party making a claim.
5. He is saying that while there is no objection to the judgment-debtor's property being sold for the judgment-debtor's debt the property attached is no longer the judgment-debtor's but belongs to a third person. I am therefore of opinion that the application to set aside the sale made by the interim receiver was not an application competently made by him under S. 47 of the Code. If it was nevertheless brought under S. 47 of the Code, then the second appeal must be dismissed. If the true view is that it is not under S. 47 of the Code, then it does not seem to me that there is any second appeal. It may or may not be that where a sale has taken place, in certain circumstances, the receiver could by bringing a suit get the sale set aside independently of O. 21, R. 90. In this case, the receiver has not done so. I need not, in these circumstances, enlarge upon the fact that at the time this application was brought the receiver was only an interim receiver because in that view, it was quite impossible for him to take the attitude that he could represent the judgment-debtor for the purpose of having the property escape execution. I would here refer to the observations of Banerjee, J., in the case of Miller v. Lukhi Mani Debi, at p. 421:
“The question whether the point in this case comes under Cl. (c), Section 144 of the CPC, has to be determined with reference to the nature of the objection raised by the Official Assignee.”
6. In my view there are no merits in this case and the appeal must be dismissed with costs: hearing fee two gold mohurs.
Pearson, J.:— I agree.
R.M/R.K
7. Appeal dismissed.