JUDGMENT

Fletcher, J. - This is a special case for the opinion of the Court under Order XXXVI of Schedule I of the Civil Procedure Code. The plaintiffs are the Charnock Collieries Co., Ld., in liquidation and Edward William Viney and John Woodhouse Thurston, the liquidators of the company; the defendant is Bholanath Dhar.

2. The matters in which the opinion of the Court is sought are under two headings. First, the defendant claims as a secured creditor in respect of a sum of Rs. 7,417-8 which is said to be due to him under a certain instrument of hypothecation dated the 3rd January 1910 expressed to have been made between the company of the one part and the defendant of the other part.

3. The second part of the claim is with reference to the right of the defendant to be a secured creditor in respect of certain royalties and rents due by the plaintiff company to the defendant under the authority of a kabuliat under which the plaintiff held the colliery.

4. This colliery was, by an agreement made between the company, the defendant, and the liquidators, sold, and the proceeds of the sale are now in the hands of the attorney to the liquidators.

6. The first point is a short one. It appears