N.K.JAIN, J. - (1.) THIS miscellaneous appeal Under Section 75(2) of the provincial Insolvency Act is directed against the order passed by learned Addl. Dist. Judge, Jodhpur dated 22.3.1991 passed in insolvency case No. 1/81.
(2.) BRIEF facts which give rise to this appeal are that the appellants moved an objection application on 12.5.73 with the allegation that on the application dt. 21.5.74 of creditors Gulabchand, Dwarakadas and Ors. the firm Shyamdas Badridas together with their partners Badridas and Udairaj were adjudicated insolvents on 6.11.54. They submitted an application for discharge on 7.11.55. The insolvents and their creditors submitted a proposal for composition on 23.1.1967 which was approved by the court Under Section 39 of the provincial Insolvency Act by its order dt. 25.2.1971. The Court receiver was appointed 27.4.54. The insolvents submitted an application for discharge on 12.5.73. The Insolvency Court discharged Badridas as well as Udairaj on 16.10.73. The two houses and one plot belog to Badridas and one house subject to mortgage which belongs to Udairaj were there according to the composition. Out of these properties two houses and one plot were sold and creditors were paid total amount of claim with interest upto 6.11.54. The receiver submitted an application on 13.11.81 that the house of insolvent Udairaj mortgaged to Rs. 10000/ - in 1954 may be allowed to sold subject to mortgage as period of limitation is to expire. As Udairaj expired, a Ujardari was filled by Smt. Mathuradevi widow of Udairaj and her sons on 10.1.83 that the disputed house cannot be put to auction as it is a joint property. The receiver has filed reply stating that the objectors cannot become owner only on the basis of name in the patta. The learned trial court dismissed Ujardari on 23.4.83. A miscellaneous appeal No. 182/83 was filed in this Court and the case was remanded vide its order dated 10.6.84 but again after considering the question framed by this Court, the learned trial court dismissed it on 22.3.91. Hence, this appeal.
(3.) MR . H.C. Jain, learned Counsel for the appellant has submitted that the learned court has erred in rejecting the objections as sufficient time was given to creditors but no evidence has been adduced and has wrongly come to the conclusion that the disputed house was the property of the firm without any finding. It was further contended that the disputed house cannot be auctioned for the payment of interest as it does not belong to the firm and the same is of Udairaj and his HUF and the possession of the attached house be given back to the appellants L.Rs. of deceased Udairaj and also submitted that the property of the insolvent be discharged. Mr. G.R. Singhvi, learned Counsel for the respondent has not disputed and admitted that entire dues have been paid but submitted that the property is to be retained for the payment of future interest and has also submitted that without other creditors having been made a party this question cannot be decided.;