JUDGMENT

1. This is an appeal from a decree of the learned Subordinate Judge, Unao, dated 31st October 1930, affirming a decree of the learned Munsif of Purwa, at Unao, dated 12th May 1930. This case has an unfortunate history. The facts are these: One Ambika Prasad executed a sale deed in favour of the plaintiff, Abid Ali Khan, in respect of certain property on 5th February 1926. He presented an application for insolvency on 23rd May 1927. He was adjudged an insolvent on 26th November 1927. On 22nd December 1927 the receiver appointed by the insolvency Court attached the property in suit and fixed 23rd January 1928 for sale. The plaintiff Abid Ali Khan presented an application to the receiver on 10th January 1928 objecting to the proposed sale on the basis of the sale deed dated 5th February 1926. The receiver submitted a report on the plaintiff's application to the insolvency Court on 13th January 1928. The report was to. the effect that the transfer relied upon by the plaintiff was made within two years of Ambika Prasad's insolvency and was therefore voidable at the option of the receiver. On 13th January 1928 the insolvency Court dismissed the plaintiff's petition of objection in his default although the plaintiff had not been given any notice of the hearing. It is clear that this irregularity in dismissing the plaintiffs petition in his absence without giving him a hearing is very objectionable. On 20th January 1928, the plaintiff Abid Ali Khan made another application to the insolvency Court setting up his claim under the sale deed mentioned above and stating the fact that he had formerly made a similar application on 10th January 1928.

2. On 24th February 1928 the insolvency Court treated the application of 20th January 1928 as an application to set aside the ex parte order dated 13th January 1928. Notices were given to the receiver and the creditors to show cause against the application being granted. The case came up for hearing before another Judge on 16th October 1929. That learned Judge held that the application of 20th January 1929 could not be treated as an application for setting aside the ex parte order of 13th January 1928. He treated the application of 20th January 1928 as an independent application and dismissed it as time-barred under Section 68, Provincial Insolvency Act, on the ground that it had been made after the lapse of more than 21 days from the date of attachment by the receiver. Though he dismissed that application he added that it was open to the plaintiff Abid Ali Khan to have the question of his right to the property in suit determined by instituting a suit for a declaration in the proper Court. The plaintiff Abid Ali Khan submitted to the order of the insolvency Court and acting upon the directions given by the Judge filed a regular suit in the Court of the Munsif of Purwa on 18th January 1930. When that suit was filed the receiver came forward with the plea that the suit was. barred under Section 4 (2), Provincial Insolvency Act, by the reason of the order of 13th January 1928. The Munsif of Purwa accepted the plea and dismissed the suit. The plaintiff Abid Ali Khan then filed an appeal but his appeal was dismissed by the learned Subordinate Judge on 31st October 1930. He then filed this appeal in this Court on 7th February 1931. During the pendency of this appeal the plaintiff Abid Ali Khan filed two other appeals, one against the order dated 13th January 1928 and the other against the order dated 16th October 1929 mentioned above. We have to dispose of all these three appeals.

3. We have heard the learned Counsel on both sides. In our opinion the second Civil Appeal No. 63 of 1931 fails for the reasons given by the learned Subordinate Judge in his judgment. The appeal fails on points of law and we are not prepared to disagree with the decision of the learned Subordinate Judge on those points. However the plaintiff's appeal against the order dated 13th January 1928 must be allowed. It is true