Judgement

Appeal (No. 92 of 1925) from a decree of the High Court (November 25, 1924) reversing a decree of the Subordinate Judge of Asansol, Burdwan.

The appellant as receiver of the estate of one Amulya Krishna Basu, who had been declared an insolvent under the Provincial Insolvency Act, 1907, brought a suit to set aside a decree for foreclosure of a mortgage upon property which had devolved upon the insolvent, and to redeem the property.

The facts, and the terms of the relevant provisions of the above Act, appear from the judgment of the Judicial Committee.

The Subordinate Judge made a decree for redemption.

On appeal to the High Court the decree was set aside and the suit dismissed.

The learned judges (Walmsley and Ghose JJ.) were of opinion that the receiver could not maintain the suit having regard to s. 16, sub-s.5, of the above Act. Ghose J. held further that the final decree of the Subordinate Judge for foreclosure operated as res judicata against the plaintiff. In his view, the receiver, if he wished to challenge the decree, could and should have appealed from it.

1927. Feb. 4. Dunne K.C. and E. B. Raikes for the appellant.

De Gruyther K.C. and Dube for the respondents.

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