An application by a receiver for mesne profits is not barred by limitation if it is made within six years from the date when the appellant first unequivocally denied the right of the receiver to the property.

CHAGLA, C.J. :- The few facts which give rise to this Letters Patent appeal may be briefly stated. One Hirachand Gandhi was adjudicated insolvent on 25th June 1927. He had sold a property on 26th May 1923, to one Paraswar and Paraswar in his turn sold the property to the appellant on 27th July 1923. The alienation by the insolvent in favour of the appellant was set aside by the Insolvency Court on 17th June 1931. An appeal was preferred to the District Court and the appeal was dismissed on 11th April 1932. There was a second appeal to the High Court which was also dismissed on 22nd February 1935. The receiver obtained possession of the property on 29th October 1933, and on 23rd March 1936, he made an application for mesne profits. The Insolvency Court awarded to him mesne profits from the date when the appellant was in possession, viz., 27th July 1923, till the receiver went into possession, and that amount came to Rs. 3,155. From this order an appeal was preferred to the District Court and that appeal was dismissed. The second appeal came before Bavdekar, J., who took the same view as the two Courts below, and thereupon he dismissed the appeal. Then on an application made to him he gave a certificate for Letters Patent appeal, which appeal has now come before us.

2. The main question that has been argued before us by Mr. Walawalkar on behalf of the appellant is that the application of the receiver for mesne profits is barred except to the extent of about seven months, and the contention urged is that Art. 100 applies to the facts of this case. Article 109 provides for limitation for a suit filed for the profits of the immovable property belonging to the plaintiff which have been wrongfully received by the defendant, and the limitation is three years and limitation begins to run from the date when the profits were received. This application of the receiver was made under S. 4, Provincial Insolvency Act. That section empowers the Insolvency Court to decide all questions, whether of title or priority, or of any nature whatsoever, and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the orgnizance of the Court, or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any each case. It is clear that the section is declaratory of the jurisdiction of the Insolvency Court. It does not in any way alter any law, nor does it deprive any party of any rights that it might have under the law. Section 5, Provincial Insolvency Act provides that subject to the previsions of this Act, the Court, in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in exercise of original civil jurisdiction. It is urged by Mr. Chitale that Art. 109 only applies to suits which are filed for recovery of mesne profits, and inasmuch as the application of the receiver is not a suit, Art. 109 cannot apply to such application. Mr. Chitale goes further and contends that the application of the receiver can never be barred by the law of limitation as there is no article in the Indian Limitation Act which applies to any application made by the receiver under S. 4, Provincial Insolvency Act. It is perfectly true that although in deciding this application the Court has got to follow the same procedure as it follows in exercise of original civil jurisdiction, the application by the receiver cannot be leaked upon as a suit. It may be in the nature of a suit, the same procedure might be applied to it as might be applied if the receiver had filed a suit, but strictly the Limitation Act would not apply to such an application. But the difficulty in Mr. Chitales way is this. If the receiver had filed a suit instead of making an application under S. 4, it cannot be disputed that it would have been open to the appellant to plead limitation and to plead it