Shanti Swarup Dhavan, J. - (1.) This is an insolvent's, second appeal from an order of the Additional District Judge Meerut confirming in appeal the order of the insolvency court dismissing as time barred his objection that certain properties are not liable to be attached and sold. A petition was filed before the Insolvency Court at Meerut for adjudging the appellant Dwarka Prasad Bhatnagar as insolvent He resisted and filed an objection which was dismissed on 6th January 1659. The creditors filed an appeal before the District Judge During the pendency of this appeal the appellant filed an application conceding that he was unable to pay off his debts and praying that the appeal be allowed and he be adjudged as insolvent, and also praying for the appointment of an official receiver to take possession of all his properties and dealing with them according to law. This application was made by agreement with the creditors. As a result the court allowed the appeal and adjudged the appellant insolvent and appointed the official receiver to take possession of all the properties of the appellant. This order was passed on 18th April 1959. On 9th July 1960 the appellant made the application which led to the present appeal. It purported to be one under Section, 60 and 151 C.P.C. The appellant alleged that he was an agriculturist and his only source of livelihood was agriculture. He further alleged that his agricultural and residential properties had been attached by the official receiver". Particulars of these properties were given at the end of the application. The appellant contended that these properties were exempt from attachment and sale, and prayed for their release from attachment and for an order directing a certain Magistrate not to put them for sale. The appellant alleged that the sale had been fixed on 18th 1960 (sic). It is not clear from this application how the Magistrate had been put in charge of the business of selling these properties. Neither the counsel for the appellant nor for the receiver was able to explain this.
(2.) The insolvency Court treated this objection as one under Sec. 68 of the Provincial Insolvency Act. The official receiver raised a preliminary objection that the objection was time barred as it had been moved after more than 21 days from the alleged attachment by the receiver. This objection was upheld by the court and the appellant's objection dismissed with costs. This, decision was confirmed on appeal by the Additional District Judge Meerut and the appellant has come here in second appeal.
(3.) Mr. Narendra Kumar for the appellant argued that the view of the courts below that the application was time barred under Sec. 68 of the Act is erroneous. Counsel argued that the limitation under that Sec. applies only to an objection against an act or decision of the receiver, but not to an objection against an act or decision which manifestly is without jurisdiction. Learned counsel relied on Sub -section (6) of Sec. 28 which provides in effect that certain properties of the insolvent which are exempted by the Code of Civil Procedure or by any other law from attachment and sale in execution of a decree do not vest in the court or the receiver and are not divisible among the creditors. Counsel pointed out that the appellant had in his objection claimed that the properties in dispute were exempt from attachment and sale under Sec. 60 C.P.C. and therefore could not vest in the receiver and were not divisible among the creditors Learned counsel argued that the attachment of these properties by the receiver was an act beyond his jurisdiction, whereas Sec. 68 contemplates only those acts which are within his jurisdiction.;