JUDGMENT
S.N. Jha, J.
1. The petitioners objected to locking up of the premises by the Receiver appointed in a proceeding under the Provincial Insolvency Act, 1920 (the Act, in short). The application has been rejected by the Court below as being time-barred.
2, Though not necessary to go into the history of the case in order to decide the point in issue, the factual background of this revision may shortly be stated as hereunder. The petitioners purchased the premises in question in execution of a money decree, in Execution Case No. 84 of 1963. The auction sale took place on 7-2-66. The sale was confirmed on 1-4-1966 and delivery of possession was effected on 26-6-66. In the meantime, the defendant judgment-debtor, opposite party herein, had filed an insolvency petition before the District Judge, Motihari which was registered as Insolvency case No. 2 of 1966 to adjudge him as an insolvent. In that proceeding he filed an application for stay of confirmation of sale which was rejected on 28-3-66. It is said that an ex pane order declaring the opposite party as insolvent was passed on 10-1-72. After the Judgeship of West Champaran was created in 1976, the insolvency case was transferred to the new Judgeship where it was re-numbered as Insolvency case No. 12 of 1976. It is said that on 18-8-78 the case was dismissed for default. The application for restoration being Misc. Case No. 1 of 1978 was also dismissed. The application for restoration of the miscellaneous case vide Misc. Case No. 7 of 1980 too was dismissed. However, Misc. Case No. 9 of 1980 for restoration of Misc. Case No. 7 of 1980 was not only allowed but the original insolvency case itself was restored by an ex parte order without notice on 18-12-1985. After restoration of the insolvency case the Court passed an order of appointment of receiver. By order dated 26-2-92 it invited objections against the report of receiver. On the same day the receiver locked the premises in question. On 4-3-92 petition for time was filed for taking necessary steps against locking up of the premises. On 24-3-92 petition was filed for clarification of certain order also pointing out that the entire records were not available and, therefore, the objection could not be filed. Application in the nature of objection was filed on 2-4-92 along with a petition for condonation of delay under. Section 78 of the Act. The Court below has rejected the application as not maintainable on the ground limitation without considering the question of condonation of delay.
3. The question for consideration in this revision is whether the period prescribed for filing application under Section 68 of the Act can be extended. Mr. Chittranjan Sinha, learned Counsel for the opposite party submitted that the period of 21 days is not the period of limitation but a condition precedent for filing application against any act or decision of the receiver and, therefore ; not amenable to the general power of the court to condone any delay in that regard. Counsel placed reliance on Chintaman Laxman v. Ramgopal Raghunathdas AIR 1948 Nag 385 and Burugupalli Rajagopalam v. Official Receiver West Godvari AIR 1958 AP 426. On the point whether the act of locking of the premises amounts to ‘act’ or ‘decision’ within the meaning of Section 68, reference was made to the case of Hans Raj v. Rattan Chand AIR 1967 SC 1780.
4. The decision in Chitaman Laxman, (supra) was rendered in the context of the provisions of Section 9(1)(c) of the Act. That provision lays down that a creditor shall not be entitled to present an insolvency petition against a debtor unless the act of insolvency on which the petition is grounded has occurred within three months before the presentation of the petition. The petition envisaged in the said provision is the very basis of the initiation of the proceeding. It is like filing of plaint on the basis of which a suit is registered. Just as the period of limitation for filing plaint i.e. suit cannot be extended under Section 5 of the Limitation Act or under inherent power, likewise, the period of three months prescribed under Section 9(1)(c) also cannot be extended. The decision in the case of Chitaman Laxman, (supra) therefore is distinguishable and of no avail to the opposite party. The decision in Burugupalli Rajagopalam (supra) was distinguished by a Division Bench of the same Court in the case of Mantena Durgaraju v. Melam Pullam Raju . It was said that what was decided in Rajagopalan’s case was the question Of exercise of inherent jurisdiction of the court. The question of application of the provisions of Section 78 Which, in terms, makes Section 5 of the Limitation Act applicable was not considered. The learned Judges held in unequivocal terras that the delay in filing application under Section 68 can be condoned under Section 78 of the Act.
5. Sub-section (1) of Section 78 runs as follows :-
The provisions of Sections 5 and 12 of the Indian Limitation Act, 1908 shall apply to the appeals and applications under this Act, and for the purpose of the said Section 12, a decision under Section 4 shall be deemed to be a decree.
The provision, in my view, is as clear as day light and is does not admit of any ambiguity whatsoever and therefore I have no hesitation in giving my assent to the views expressed by the Andhra Pradesh High Court in the case of Mantena Durgoraju (supra), As stated above, the Court has rejected the application only on the ground of limitation without going into the merits of the claim for condonation. It is a fit case, therefore, in which the matter should go back to the Court below for fresh consideration.
6. Before I part with the case I would like to observe that the Court below, while considering the question of condonation, should also examine as to whether locking of the premises amounts to ‘act’ ‘or’ ‘decision’ within the meaning of Section 68 so as to attract 21 days time-bar as provided therein keeping in mind the law laid down in Hans Raj v. Rattan Chand AIR 1967 SC 1780 (supra). I have not gone into the merits of the case which the parties will be entitled to urge in the Court below in the event the application is found to be covered by Section 68 and the delay in making the same is condoned.
7. In the result, this revision is allowed. The impugned order dated 9-6-92 rejecting the application as time-barred is set aside. There will be no order as to costs.