JUDGMENT Sulaiman, Ag. C.J.
1. This is an appeal by the decree-holder arising out of insolvency proceedings. The receiver attached cloths in a shop styled "Rovindra Nath Raj Kumar" which is carrying on business at Aligarh, alleging that this was the property belonging to the insolvents Madan Lal Madho Ram. Objection was filed on behalf of Dr. Kiahaa Chand who claimed that the shop was his own shop and the cloths belonged to him. After evidence was recorded the learned Judge came to the conclusion that it was not proved that the property belonged to the insolvents. He has accordingly ordered that the property may be released from attachment and he also refused to punish the insolvents.
2. The insolvents were carrying on a cloth business and owed money to a number of creditors. There was an exhibition held at Muttra in February 1926 and they occupied shops Nos. 25 and 26. The register kept by the treasurer shows that a fire started at shops Nos. 27 and 23 and that nearly half the shops in the exhibition were burnt. The shops occupied by the insolvents were separated from the shops where the fire started by a gate which is said to be about 20 feet wide. It might well have been a wooden structure. We think that the entry in the register is conclusive to show that the shops occupied by the insolvents also took fire. The oral evidence produced by the decree-holder that their shops did not catch fire cannot be accepted. It was next suggested that the insolvents were able to take out their cloths from the shop and were able to take them in a lorry to Aligarh, Evidence on this point is hearsay because the witness in cross-examination had to admit that the cloths were not removed or loaded in the lorry in his presence. It is also inconsistent with the admitted story that the insolvents went to Saha-ranpur from Muttra and not to Aligarh direct.
3. There is as a matter of faofcno evidence that the cloths were actually brought by the insolvents to Aligarh except the admission of one of the insolvents that damaged cloths of the value of Rs. 200 or Rs. 300 were brought there by them.
4. No doubt there are very suspicious circumstances which suggest that the insolvents might have an interest in this shop. This new shop was started in October 1926 after the alleged fire at Muttra. Dr. Kishan Chand who is said to be the proprietor of this shop is the own brother of Madho Ram one of the insolvents. It was suggested in argument that Raj Kumar is the name of the son of Madan Lal, the other insolvent, but there is no evidence on the record to support it. On the other hand the statement of Dr. Kishan Ghand is that the name of the son of Madan Lal is Shadi Lai. One has to admit the fact that the two insolvents have been working at this new shop and there is evidence to show that they have been working at the shop from the time that it was started. The insolvents say that they are working as servants drawing Rs. 30 or Rs. 35 as pay.
5. The decree-holder adduced oral evidence to show that for about a year and a half the signboard containing the name " Madan Lal Madho Ram" was put up on this Aligarh shop and that it was removed subsequently. The evidence of the witnesses on this point has not been believed by the Court below and the witnesses are not of a very high status. On the other hand the objector produced Mr. Khwaja Abdul Ali, a retired Subordinate Judge as Well as Pt. Chhote Lal Bahargav, a practising vakil, who stated that they had been customers of this Aligarh shop and have not seen any signboard bearing the name "Madan Dal Madho Ram" ever since the shop was started. The learned Subordinate Judge, who heard the oral evidence on both sides preferred this evidence. We see no reason to disagree from his view.
6. The insolvents have said that after the fire at Muttra, they went to the "exhibition at Saharanpur and thereafter to Lahore. It is argued before us that if their goods had been practically all burnt they would never have taken the trouble to go to the exhibition at Saharanpur, but according to the evidence the insolvents had previously rented shops at the Saharanpur exhibition and had to pay for the rent and it was not unnatural on their part to try to sell as much as they could out of the damaged goods. It is in evidence that even the owner of the shops Nos. 27 and 28 which caught fire first also went to Saharanpur with the same purpose.
7. Dr. Krishan Ohand is a medical practitioner at Aligarh and he is likely to have an independent income. From his oral evidence it appears that he is not joint with his brother. It is admitted that before thenew shop was started at Aligarh Madan Lal Madho Ram did not have any shop at Aligarh and did not carry on business at that place. It is most unlikely that after they had been declared insolvents they would start a shop styled "Madan Lal Madho Ram."
8. The burden of proving that the cloth which is in the new shop styled "Rovindra Nath Raj Kumar" is the property of the insolvents lay on the receiver. Apart from the suspicious circumstances pointed out above there is no satisfactory direct evidence that this is so. There is also no proof that the capital with which the new shop was started was supplied by the insolvents.. However suspicious we may be as regards the conduct of the insolvents, it is not possible to base our findings on mere suspicions. We must therefore accept the finding of the Court below and hold that it has not been proved that the new shop belongs to the insolvents.
9. The learned Subordinate Judge after considering all the circumstances refused to pass an order under Section 69, Provincial Insolvency Act against the insolvents. Every order passed by an insolvency Court is not appeasable as a matter of right. Appeals are provided under this Act from certain specific orders. The last serial number of Schedule 1 attached to the Act (restored by Act 18 of 1928) al-lows an appeal from an order of conviction and sentence of a debtor for an offence under Section 69. No appeal is allowed from an order refusing to convict him. We therefore think that it is not open to the appellant to ask us to reconsider the propriety of that part of the order. We accordingly dismiss this appeal with costs.