M.L.JOSHI, J. - (1.) THIS is a special appeal under Section 18 of the Rajasthan High Court Ordinance directed against the judgment of learned Single Judge dated 28th September. 1965, whereby he allowed the appeal of the respondent and held the house of the appellant -judgment debtor saleable in execution of the decree passed by the Churu Court on 20 -4 -1950 against Jivan -mal judgment -debtor.
(2.) THE facts which are relevant (for appreciating the controversy in this appeal briefly stated are: Messrs Chunilal Hajarimal lent a sum of Rs. 5000/ -to the appellant No. 2 at Calcutta. The said creditor instituted a suit No. 80 of 1947 -48 at. Churu for the recovery of the amount, and not the house of Jivanmal appellant attached before judgment. This suit was decreed for Rs. 5048.40 with costs on 29 -4 -1950. During the pendency of the suit Jivnnmal appellant was adjudged insolvent by the order of the Calcutta High Court on 16 -9 -1949. Official Assignee of the Calcutta High Court was appointed Receiver of the properties of the respondent Jivanmal including his house at Churu by an interim order of the Calcutta High Court on 14 -2 -1949. After obtaining decree at Churu the ap -pellants put the decree into execution and prayed for sale of the attached house on 11 -5 -1950 in execution case No. 78 of 1951. On 29 -5 -1950 the execution court ordered that since judgment debtor had been adjudged insolvent the decree -holder should implead the Official Assignee as a party to the execution application. This order was challenged by the decree -holder by way of appeal but the appellate Court also upheld the order and dismissed the appeal holding it to be barred by time and further holding that, the Official Assignee was necessary party. The execution proceedings continued in the executing Court despite the failure of the decree -holder to implead the Official Assignee, On 15 -9 -1951, the executing Court dismissed the first execution application as unsatisfied. On 8 -9 -1954, the second execution application was filed. In this application too, the Official Assignee was not impleaded. The judgment -debtor filed an objection that the house had vested in the Official Assignee and could not be sold in the execution of the decree. The objection was overruled by the executing Court In its order dated 17 -3 -1958 on the ground that the Calcutta High Court was a foreign, court when the order of, ad -indication was made by it. Dissatisfied the judgment -debtor preferred an appeal before the District Judge. Bikaner, who accepted the appeal on 15 -12 -1959 and remanded the case directing the decree -holder appellant to implead the official assignee and after serving notice upon him should decide whether the attached house could be sold in the execution of the decree. In the meantime the third execution application No. 119/58 was filed on 6 -11 -1958 that too without impleading the Official Assignee. This application was dismissed on 5 -3 -1960 for want of supplying process -fee etc. The fourth execution application No. 33 of 1960 was presented in the execution Court on 15 -3 -1960 in accordance with the order of the appellate Court dated 15 -12 -1959. In this application of course the Official Assignee was made a party for the first time. The Official Assignee filed objection as to the maintainability of the execution application as barred by time against him. This application was dismissed on 28th of August, 1961 by the Senior Civil Judge. Churu, holding that the same was barred because in spite of the order dated 29 -9 -1950 by the executing Court a period of nearly 10 years had elapsed between the passing of the decree and joining the Official Assignee Calcutta as a party to the execution proceedings, and, therefore, the execution application stood barred by time against the Official Assignee. On appeal the judgment of the Senior Civil Judge was upheld by the District Judge. Bikaner by his judgment dated 24th of May, 1963. Being dissatisfied with the judgment of the District Judge Bikaner, the respondent decree -holder preferred a second appeal in the High Court which was heard by a Judge sitting in the Single Bench. The points canvassed were whether the property had vested in the Official Assignee and whether the debt. had been wiped out an account of the discharge of the insolvent. On both the points the learned fudge found against, the appellants. It was held that the Churu Court in whose jurisdiction the property in question was stuate was a 'foreign court at the time of the massing of the adjudication order and, therefore, the property had not vested in the Official Assignee of Calcutta High Court. It was further held on the basis of the decisions reported in Abdul Kuthus v. Inayathulla, AIR 1937 Mad 727 and Jubilee Bank v. Santimoyee Debi, AIR 1950 Cal 487 that the debts even if they are provable in insolvency were not extinguished and the decree -holder -creditor of the insolvent could proceed against the estate of the insolvent situate in foreign territory at the relevant time. On the above finding the learned Single Judge accepted theappeal of the respondent and held that the house of the judgment -debtor -appellant was liable to be sold in the execution of the decree of the respondent. On a prayer being made on behalf of the judgment -debtor for leave to appeal to the Division Bench, the leave was granted and in consequence thereof both the Official Assignee and the judgment -debtor Jivanmal have come up in special appeal before us.
(3.) MR . H. C. Jain learned counsel for the appellants challenged the judgment of the learned Single Judge on the following grounds: - - (1) That the application of the decree -holder -respondent was barred by time as the previous, three applications made prior to the present fourth application, were not in accordance with law in as much as on the passing of the adjudication order against appellant Jivanmal on 6 -9 -1949 the property had vested in the Official Assignee of the Calcutta High Court who was a necessary party to the previous execution application but he was not impleaded in those applications: (2) That the appellant Jivanmal was discharged on 23 -6 -1955 by the Calcutta High Court and all his liabilities including the decretal debt in question stood wiped out and could not be enforced by way of an execution application.;