P L D 1959 (W (PLP)

It appears in this Court that the insolvent owns an immov able property viz. a plot of land with building thereon, at his village Khotian, a plan of which is hereunder annexed for your assistance. I have therefore to request you under the provisions of section 126, Presidency Towns Insolvency Act, III of 1909, to seize the immovable property aforesaid belonging to the insolvent with the assistance of the plan attached showing the location of the said prorerty. This is a letter of request issued by the Chief Court of Sind, Karachi, and I trust you will act on the same." This letter was forwarded by the District Judge to the Senior Civil Judge for compliance because the Senior Civil Judge was acting as the Insolvency Court. An objection was raised before the learned Senior Civil Judge that the house in dispute was a residential house of the petitioner and was not liable to attach ment and sale under section 60 of the Code of Civil Procedure as it was occupied by him. The learned Senior Civil Judge gave effect to the preliminary objection raised on behalf of the official receiver that the Court had no jurisdiction to hear the objection. An appeal to the District Judge against this order has failed and the petitioner has come up in revision to this Court on the ground that the Senior Civil Judge has failed to exercise a jurisdiction vested in him by law.

2. On behalf of the petitioner it is argued that section 77 of the Provincial Insolvency Act, under which aid had been sought by the Chief Court of Sind from the District Judge, Jhelum, empowers the Court to hear all objections to sale of property, because it confers on that Court the same jurisdiction as exists in the Court which makes the request.

3. On behalf of the respondent, it is argued (1) that this revision petition is incompetent because an appeal lay ; (2) that the learned Senior Civil Judge, Jhelum, had in fact no jurisdic tion to heal the objection, and (3)‑ that on the merits the petitioner had no case, for the house in dispute did vest in the official receiver and was liable to sale.

4. The first objection, which is preliminary one, can be disposed of in a few words. The contention on behalf of the respondent is that although section 75 of the Provincial Insolvency Act contemplates only one appeal in ordinary cases, it provides for a. second appeal in cases decided under section 4 of the Provincial Insolvency Act and this, learned counsel urges, was a case under section

4. Section 4 of the Provincial Insolvency Act relates to decisions on questions of title or other rights which the Insolvency Court may have to adjudicate "upon. Here it is true that if the Court had passed an order, it would be covered by section 4, for it will relate to a question of title or right of a party. But the Court has not passed any order under that section. It has held that it has no jurisdiction to act under that section. A second appeal, therefore, did not lie. If it did lie, I would have had no objection to treating this revision as a second appeal.

5. For a consideration of the second objection, I reproduce below section 77 of Provincial Insolvency Act :‑ "All Courts having jurisdiction in insolvency and the officers of such Courts, respectively, shall severally act in aid of and be auxiliary to each other in all matters of inslovency, and an order of a Court seeking aid with a request to another of the said Courts shall be deemed sufficient to enable the latter Court to exercise, in regard to the matters directed by the order, such jurisdiction as either of such Courts could exercise in regard to similar matters within their respective jurisdictions." Under this section, Insolvency Courts are to act in aid of each other. Whenever an Insolvency Court finds it inconvenient to take action in the matter itself, it makes‑ a request to another Court and then that Court has the same power to act in the matter as the Court which made the request. But this section; certainly does not mean that the Court, to which a request is made, could overrule or sit in appeal over an order passed by the original Court. It can act only in aid of that Court. If, that Court had directed that a particular property is to be sold, the Court, to which a request is made for selling the property, does not become invested with any jurisdiction to decide whether the property, is liable to be sold at all. That is a matter for the decision' of the Court which issued the order. The second Court will not be acting in aid of the original Court if when asked to sell a house it says the house cannot be sold at all. The object of the section is that when a Court wants to do a thing and cannot do it conveniently itself, it should ask some other Court to do it on its behalf. But the second Court gets no more jurisdiction than the original Court intends to transfer to it. If the original Court has already decided that a particular action is to be taken, the only function of the second Court is to assist the original Court in taking that action. The second Court cannot say that that action cannot be taken at all, provided, of course, that the matter is within section 77, for if it is beyond section 77, the Court can refuse to act on the ground that it is not within the purview of section 77 at all.

6. In the present case, the Sind Chief Court might have sent a request to the District Judge, Jhelum, to the effect that whatever property the petitioner owned in District Jhelum may be sold. In that case, it will be for the Court at Jhelum to decide what was the property to be sold. But in the letter, which was sent to the District Judge, a particular house had been mentioned. Even its plan had been attached. The help required was that the house was to be sold. The Senior Civil Judge certainly would not be acting in aid of the Sind Chief Court if he decided that the house was not to be sold at all.

7. Reliance was placed on behalf of the petitioner on Raman Chettiar v. Muthupalaniappa Chettiar (A I R 1941 Mad. 580). In that case a person had been adjudicated an insolvent by the Court at Amherst in Burma and that Court had sent a request to the Court at Ramnad in Madras to sell the property of the insolvent. This property was sold and subsequently an application was presented to the Court at Amherst by the transferee of the insolvent's daughter claiming that the house belonged to her and not to the insolvent. The Court at Amherst returned this application for presentation to the Court at Ramnad. It stated in the order that that was the proper Court to deal with the matter because the property had been sold by that Court. An objection having been raised to the jurisdiction of the Court at Ramnad, the learned Judges interpreted the second order of the Court at Amherst as a request to the Court at Ramnad to decide the question itself. The learned Judges said so expressly in the judg ment. It was for this reason that they upheld the jurisdiction of the Ramnad Court to decide the matter. This case instead of helping the petitioner goes against him. If from the mere fact that a Court was asked to sell the property of the insolvent, the second Court would become invested with jurisdiction to hear objections to the sale of the property, it would have been sufficient for the learned Judges to say that as a request had been made by the Court at Amherst to the Ramnad Court to sell the pro perty, the second Court had become invested with jurisdiction 'to hear the objections. They did not say so and, on the other hand, they based their judgment only on the ground that the second order amounted to a request to the Ramnad Court to exercise jurisdiction.

8. It is true that in some cases this view may cause inconvenience to the person whose property is proceeded against but that cannot be helped. The original Court may decide all objections to sale before it makes a request to another Court and in that case the objector would have to appear before the original Court. In any case, there can be no further trans ference of jurisdiction than is intended by the request of the original Court. It is only to the extent to which help is asked for that help can be rendered. I would, therefore, hold that the question as to whether the property was liable to sale is not one which was to be decided by the Senior Civil Judge.

9. Even on the merits the petitioner has no case. His objections were based on section 60 of the Civil Procedure Code, but section 60 only exempts a house occupied by the judgment‑debtor from attachment and sale in execution of a decree. This is not a case of execution of decree at all. So far as the Provincial Insolvency Act is concerned, there is a provision in section 60 that the execution of the order of adjudic ation amounts to execution of a decree, and property, which cannot be attached and sold in execution of a decree, cannot be attached and sold even in execution of an order of adjudication. Also in section 28 of the Provincial Insolvency Act, there is no provision that property which is not liable to attachment and sale in execution of a decree does not vest in the official receiver at all. But the order of adjudication in this case was made not under the Provincial Insolvency Act, but under the Presidency Towns Insolvency Act, as applied to Pakistan. The section of that Act corresponding to section 28 of the Provincial Insolvency Act is section

17. This section vests the whole of the property of the judgment‑debtor where ever situate in the official receiver and contains no exception in respect of property which is not liable to attachment and sale in execution of a decree. At the same time, there is in that Act , no provision corresponding to section 60 of the Provincial Insolvency Act which gives the adjudication order the same force as a decree and exempts property not liable to sale in execution of a decree from sale in execution of the order of adjudication. The result is that even if the house in dispute was occupied Ma by the judgment‑debtor and was not liable to be sold in execution of a decree, it would vest in the receiver appointed under the Presidency Towns Insolvency Act and it would be liable to be Asp sold in execution of the order of adjudication. Learned counsel Ka for the petitioner is unable to contend that the house did not vest in the official receiver in view of the wording of section

17. I have asked him what possible remedy lie would have if the official receiver himself sold the house without seeking the help of the Senior Civil Judge, Jhelum, and he is unable to suggest any remedy. The official receiver will have the power to sell this house, for there is no provision which bars the same. An argument is put forward that the Court of the Senior Civil Judge can only sell a house which can be sold according to the local law. This argument is due to confusion of thought. The provisions which stand in the way of sale and to which I have already referred, are not applicable to this case. The Court of the Senior Civil Judge can sell any property which the Chief Court at Sind could itself sell. The liability of a property to sale and the power of the Senior Civil Judge is to be determined in accordance with the provisions of the Presidency Towns Insolvency Act and not in accordance with the provisions of the Provincial Insolvency Act or the Civil Procedure Code.

10. This revision petition is dismissed with costs. K. B. A. Petition dismissed.