JUDGMENT Mookerjee, C.J. - This appeal is directed against an order made by Mr. Justice Rankin under sec. 36(5) of the Presidency Towns Insolvency Act. 1909. The subject-matter of the order is War Bonds to the value of Rs. 20,000 deposited by Jacob & Co., with the Registrar of this Court on its Original Side as security for the due performance of a decree obtained against them by the Appellant Rash Behari Ghose, or of such decree as may ultimately be made in the litigation between them. The events which have led up to the order may be briefly narrated. On the 3rd July 1913, Nitai Charan Ghose, father of the Appellant, was adjudicated an insolvent on his own petition. On the 11th January 1916, the insolvent came up for his discharge, and the order of the Court was that his discharge be suspended for 18 months, that is, till the 11th July 1917. This order was completed and filed on the 18th July 1917. Now it transpires that Nitai Charan Ghose was employed as Manager in the firm of W.A. Lee & Co., who were the first managing agents of the Nalbona Coal Co., Ltd. Nitai Charan Ghose had assisted in the formation of the Company, and it was arranged amongst the promoters that as, remuneration he would receive three-fourths of the shares which might be allotted to one Meghmala Dasi and also two-thirds of such shares as might be allotted to Kuladamoyi Dasi, who were vendors of the lands to be transferred to the Company when formed. The shares however were issued neither in the names of these two ladies nor in the name of Nitai Charan Ghose. They were in fact issued in the name of Rash Behari Ghose and have always stood in his name in the books of the Company. On or about the 15th May 1917, Rash Behari Ghose dealt with these shares as his own property and sold them to Jacob & Co., for Rs. 15,920. On the 20th November 1917 Rash Behari Ghose instituted a suit against Jacob & Co., for recovery of the value of the shares which, he alleged, had been delivered to them pursuant to the agreement for sale. 15,920. On the 20th November 1917 Rash Behari Ghose instituted a suit against Jacob & Co., for recovery of the value of the shares which, he alleged, had been delivered to them pursuant to the agreement for sale. Jacob & Co., admitted possession of the shares, but denied that they had obtained them from Rash Behari Ghose; they set up in fact an entirely different story as to how they had acquired title to the disputed shares. The suit was heard by Mr. Justice Ghose and, on the 27th August 1919 a decree was made in favour of Rash Behari Ghose against Jacob & Co. This decree was confirmed on appeal on or about the 20th April 1920. We have been informed that Jacob & Co. have carried the matter further and have preferred an appeal to His Majesty in Council. During the pendency of this litigation, Jacob & Co. deposited with the Registrar War Bonds of the face value of Rs. 20,000 for due performance of such decree as might ultimately become binding on them. On the 8th June 1920, the Official Assignee commenced the present proceedings with an application (which had been drawn up apparently on the 3rd May) in which he alleged that the War Bonds, in so far as they covered the price of the shares, appertained to the estate of the insolvent. He accordingly prayed that the Registrar might be directed to sell the War Bonds and to pay him the sum of Rs. 15,920. The application was opposed by Rash Behari Ghose who asserted that the shares were in no sense the after-acquired property of the insolvent and that their price never formed part of his estate. Mr. Justice Rankin examined Rash Behari Ghose, overruled his objection, and declared that he was the trustee for the Official Assignee in respect of the decree obtained by him on the 27th August 1919 against Jacob & Co., and also in respect of the security deposited by the latter. On this basis, Mr. Justice Rankin has restrained Rash Behari Ghose (and the Official Assignee also) from taking out of Court or dealing with the security until further orders. Rash Behari Ghose has appealed against this order and Mr. Pugh has contended on his behalf that an order of this description should not have been made, after summary enquiry, in a proceeding under sec. Justice Rankin has restrained Rash Behari Ghose (and the Official Assignee also) from taking out of Court or dealing with the security until further orders. Rash Behari Ghose has appealed against this order and Mr. Pugh has contended on his behalf that an order of this description should not have been made, after summary enquiry, in a proceeding under sec. 36 of the Presidency Towns Insolvency Act, 1909. Mr. Avetoom has controverted this argument, and has further urged that if the contention of the Appellant should prevail, the Court should direct the revival of the regular suit which had been instituted by the Official Assignee, for determination of the title to the shares but was withdrawn or abandoned in view of the turn taken by the present proceedings. We are of opinion that the order under appeal should not have been made, in the circumstances of the present case, under sec. 36 (5) of the Presidency Towns Insolvency Act. Sec. 36 authorises the Court to summon before it any person, known or suspected to have in his possession any property belonging to the insolvent, and to examine the person so brought before it, concerning the insolvent, his dealings or property. Sub-secs. 5 and 6 then provide as follows : (5) If, on the examination of any such person, the Court is satisfied that he has in his possession any properly belonging to the insolvent, the Court may, on the application of the Official Assignee, order him to deliver to the Official Assignee that property, or any part thereof, at such time in such manner and on such terms as to the Court may seem just. (6) Orders made under sub-secs. (4) and (5) shall be executed in the same manner as decrees for the payment of money or for the delivery of property under the Code of Civil Procedure, 1908, respectively. 2. These sub-sections read together make it, plain that the property in respect of which the order is made must be in the "possession" of the person examined and the order may be executed against him in the same manner as if it were a decree for the payment of money or delivery of property. Sub-sec. (5) is apparently modelled on sub-sec. (5) of sec. Sub-sec. (5) is apparently modelled on sub-sec. (5) of sec. 27 of the English Bankruptcy Act, 1883, and it is worthy of notice that the term" possession "as used in that section has Seen somewhat narrowly interpreted, To take one illustration; in Re Davis [1898] 5 Hanson 329, Wright and Darling, JJ., ruled that the Court has no jurisdiction to make an order on an agent to give up goods in his possession as agent for his principal; and they declined to express an opinion on the question, whether such order could be made even if the principal were made a Respondent to the application. In the case before us, it might have been a matter for argument whether the War Bonds deposited with the Registrar by Jacob & Co., as security for the due performance of such decree as might ultimately become binding on them, could he said to be property in the "possession" of Rash Behary Ghose at the time of the order. 3. Apart from this question, it is plain that no order under sec. 36 (5) should have been made in this case. That section, like sec. 26 of the Indian Insolvent Act, 1848, which it replaced, is discretionary. This was well-settled under the Statute of 1848, and was elaborately discussed by Sir Barnes Peacock, C.J., in Barlow v. Cochrane 2 B.L.R. (O.C.) 56 (1868). In that case a summary order had been made by Mr. Justice Phear in favour of the Official Assignee under secs. 24 and 26 of the Indian Insolvent Act : [Re Robinson 2 Ind. Jur. (N.S.) 273 (1867)]. A suit was thereupon instituted for declaration of title to the disputed fund. Air Justice Norman dismissed the suit. On appeal, the question was raised whether the suit was maintainable. Peacock, C.J., and Markby, J., who heard the appeal concurred in holding that the order under sec. Jur. (N.S.) 273 (1867)]. A suit was thereupon instituted for declaration of title to the disputed fund. Air Justice Norman dismissed the suit. On appeal, the question was raised whether the suit was maintainable. Peacock, C.J., and Markby, J., who heard the appeal concurred in holding that the order under sec. 26 of the Indian Insolvent Act could not deprive the Plaintiff of his right to sue in the High Court to establish his right to the goods, if he could prove that they actually belonged to him or that he had such an interest in the goods or the proceeds thereof as prevented them from passing to the assignee of the insolvent; the Official Assignee was no more protected than any other assignee would have been; the Court acted upon his application and the order was obtained and acted upon by the Official Assignee at his own peril. The Judges, however, were not agreed as to the merits of the matters involved in the suit. Peacock, C.J., held that the suit should be decreed, while Markby, J., held that the view taken by Norman, J., in concurrence with the order made by Phear, J., should be upheld. The result; was that under sec. 36 of the Letters Patent, the judgment of the Chief Justice prevailed against the concurrent opinions expressed by Phear, J. Norman, J., and Markby, J. The matter was then taken on appeal to the Judicial Committee, Miller v. Barlow 14 M.I.A. 209 : S.C. L.R. 3 P.C. 733 (1871). The objection that the order of the insolvent Court was conclusive and that the suit was not maintainable was reiterated by Sir Roundell Palmer who appeared on behalf of the Appellant and relied upon Garbett v. Veale [1843] C.D. & M. 460 : 5 Q.B. 408, 414. The Judicial Committee, however were not impressed with the objection, heard the appeal on the merits and affirmed the judgment of Peacock, C.J. The view that the exercise of the power vested in the Insolvency Court under sec. 26 of the Indian Insolvent Act is discretionary and that a regular suit lies for determination of the question of title was uniformly maintained so long as the statute of 1848 was in force. 26 of the Indian Insolvent Act is discretionary and that a regular suit lies for determination of the question of title was uniformly maintained so long as the statute of 1848 was in force. Reference may be made to the decision in Re Dwarkanath Mitter 4 B.L.R. (O.C.) 63 : S.C. 15 W.R. (O.C.) 18 (1869), where Peacock, C.J., pointed out that it was not compulsory on the Court in all cases to try whether the disputed property belonged to the insolvent or not, but it was discretionary with the Court to enter upon the trial of such a question and to make an order. Phear, J., added that the order, if made, could only be passed after a process of judicial enquiry and upon the hearing of evidence, and that the procedure of the insolvent Court and the mode prescribed for an application under sec. 26 were not very appropriate to an enquiry which mainly had regard to conflicting rights of property. Phear, J., added at the same time that though it had been the Constant practice of the insolvent Court to make such orders, it had always been the practice of the Court to abstain from making an order under sec. 26 to deliver over goods or to pay debts when it appeared that there was really a conflict of right or equity between the insolvent and the person in whose possession the goods were or from whom payment of the debt was sought to be obtained. There is really a conflict of two considerations when the Court is called upon to make a summary order of this description; on the one hand, unless the Insolvency Court exercises the power, the property may be made away with before an action can be brought and determined; on the other hand, in a case where there is a substantial conflict of right, the time taken up in enquiry by the insolvent Court may be thrown away, if a regular suit is instituted for investigation of the rights of the parties. To the same effect is the decision in Re Ajodhya Prasad 7 B.L.R. 74 (1871). The point was emphasised by Sir Richard Garth. C.J., in Re Umbica Nandan ILR 3 Cal. 434 : S.C. 1 C.L.R. 561 (1878), when he expressed his entire approval of the practice of the Court to abstain from deciding difficult questions of title under sec. To the same effect is the decision in Re Ajodhya Prasad 7 B.L.R. 74 (1871). The point was emphasised by Sir Richard Garth. C.J., in Re Umbica Nandan ILR 3 Cal. 434 : S.C. 1 C.L.R. 561 (1878), when he expressed his entire approval of the practice of the Court to abstain from deciding difficult questions of title under sec. 26 and to leave the parties to settle such questions by a regular suit. He added that the procedure under sec. 26 was not calculated to effect satisfactorily the trial of difficult questions of title, and as the judgment would not be conclusive, even if the Court thought it right to decide the matter, either party being free if they chose to raise the same question again in a regular suit, the Chief Justice proceeded to allow the appeal and to discharge the older made by Kennedy, J., in favour of the Official Assignee. A similar view was taken in Re Kursondus 4 Bom. L.R 154. We are not unmindful that there are instances in which cases of some complexity have been dealt with under sec. 20; see for instance Kala Gurla v. Yarla Gadda 6 C.W.N. 513 (1902) where there was a marked conflict of testimony upon a simple issue, namely, whether certain payments had been in fact made. See also Rowlandson v. Champion ILR 17 Mad. 21 (1893), Official Assignee v. Mehta 12, Re : Hirth [1899] 1 Q.B. 612 and Re : Slobodinsky [1903] 2 K.B. 517. Amongst cases decided under the Presidency Towns Insolvency Act. 1909, our attention has been drawn to the judgment of Greaves, J., in Re : Seehase 22 C.W.N. 335 (1917), where the opinion was expressed that a question as to whether a sale of property by an insolvent was fraudulent or void could, in the discretion of the Court, be enquired into under sec. 36, subject to the right of the party affected to bring a suit, if so advised. The point whether the Presidency Towns Insolvency Act, 1909, has or has not altered the law in this respect, does not appear to have been argued and we express no opinion as to the maintainability of a suit for the determination of the question of title after the matter has been decided under sec. 36; Abdul Latheef v. Official Assignee of Madras 6 C.W.N. 513 (1902). 36; Abdul Latheef v. Official Assignee of Madras 6 C.W.N. 513 (1902). This much is plain that the Court should not deal with the matter under sec. 36, if it really involves difficult questions of title, but should leave the parties to litigate such matter in a regular suit : [See Official Assignee v. Vadahalli [1916] 20 Mad. L.T. 311 : S.C. 4 Mad. L.W. 425]. We are of opinion that in the case before us the matters in issue should have been left to be decided in a regular suit. To enable the Official Assignee to succeed, an enquiry must be made as to the terms of the contract between Nitai Charan. Ghose and the two ladies, and it must be proved that the shares represented the fruits of that contract, that the ownership in the shares was vested in the father of the Appellant, that he held them in trust for his father or for his father's benefit, that when he sold the shares to Jacob & Co., be acted as trustees for his father, that be obtained a decree against them in the same capacity, and that the security deposited by Jacob & Co. partook of the same character. These are questions which require full investigation and should be determined in a regular suit. Such a suit, it appears, was actually instituted by the Official Assignee, but has been either abandoned or withdrawn in favour of the more expeditious form of enquiry contemplated by sec. 36. There can be little doubt that the suit was the mere appropriate remedy. The result is that the appeal is allowed the order made by Mr. Justice Rankin discharged, and the application of the Official Assignee dismissed. The suit already mentioned will stand revived. The costs of the Appellant, both here and before Mr. Justice Rankin, will be costs in the suit. The Official Assignee will be at liberty to fake the costs incurred by him out of the unclaimed dividend revenue account, in so far as the costs cannot be met from the assets in his hands. We make this order, because there is reason to believe that the provisions of the insolvency rules as amended in 1918 have been over-looked and amounts have been drawn from the unclaimed dividend account without the leave of the Court. Fletcher, J. I agree.