JUDGMENT

Baguley, J - This appeal arises out of Insolvency proceedings filed by one P.C. Dass. The proceedings are lengthy, and with a great portion of them this order is not concerned at all. In addition to the insolvency proceedings, there is another connected case (Civil Regular No. 28 of 1932 of the District Court of Amherst), in which various parties claim a declaration that all the properties alleged to belong to Dr. P.C. Dass were co-parcenary property of a joint and undivided Hindu family; but this case fell through and was dismissed. In consequence, as between these parties, it is res judicata that the properties which the Bailiff took over as receiver are the outright properties of P.C. Dass, the insolvent. The present application is concerned with certain houses, of which, one was mortgaged to one Abas Beg, and all the rest were mortgaged to the E.M. Chettyar Firm. These properties were put up to sale by the receiver and, in the end, all those mortgaged to the B.M. Firm were brought by the E.M. Firm, while the house mortgaged to Abas Beg was sold to Abas Beg. On the 11th August, the insolvent filed a petition stating that some of his house properties were sold to the E.M. Firm for Rs. 22,575, and some to Abas Beg for Rs. 900, and that the houses were sold subject to their respective mortgage debts; so he asked that the purchasers should pay in the amount of their bids; and as the money realized was more than Sufficient to pay off all the debts proved in insolvency, he asked that the balance of the money should be paid over to himself.

2. A point was raised by the receiver that the houses were sold free of the respective mortgages and not subject to them. From the diary entry it appears that the insolvent's application of the 11th August was handed in, when the case was before the Court on some other point. At that time one Mr. Shunmugam Pillay was appearing both for the receiver and for the E.M. Firm. The objection is signed by him as advocate for the receiver only; but it seems quite clear that he was also acting for the E.M. Firm, because the E.M. Firm was the party mostly concerned. If the houses were sold subject to their mortgages they had to pay Rs. 22,000 into Court and then realise their mortgage money afterwards out of the houses. If they were sold free of their mortgages, then the houses had become their property and there was merely a book entry to be made. Abas Beg who was affected in exactly the same way as the E.M. Firm, never had any notice issued to him at all, and the whole proceedings have gone on in his absence. It is idle to contend that the receiver represents the estate for all purposes, because in this particular instance Abas Beg was more affected as purchaser at the auction sale than as a creditor. Be that as it may, the proceedings went on between the insolvent on the one side and the E.M. Firm and the receiver jointly on the other, though nominally the respondent was the receiver represented by Mr. Shunmugam Pillay. The Court found that the houses were sold free of the various mortgage debts and that the mortgagees have a claim on the sale proceeds; so the application was dismissed. It is against that dismissal that the present appeal has been filed. The appellants's see-anchor is the receiver's original report dated the 2nd June, in which he has carefully written in with his hand in a blank space in a typed report the words "subject to", so that he reports, all the properties were sold subject to mortgage. The receiver contends that he made a bona fide mistake, and he really meant that he sold the houses free of the mortgages. The proclamations referring to the sale now in question are to be found as Exs. 1 and 2. Ex. 1 refers to one set of houses, in which nothing whatever is said about any mortgage to any person. In Ex. 2, which refers to three other houses there is a note, "Abas Beg claims to be a mortgagee of the said house and ground." Therefore so far as these notices are concerned an