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Bhasker Waman Ranade Vs. Shridhar Krishna Kothavle - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1907)9BOMLR898
AppellantBhasker Waman Ranade
RespondentShridhar Krishna Kothavle
Excerpt:
civil procedure code (act xiv of 1882), section 245 b-insolvency act (st. 11 and 12 vic. c. 2), sections 13 and 49;the provisions of section 49 of the insolvency act (statute 11 & 12 vic. c. 21, section 49) are not directory or imperative, lint merely permissive ; and even after a vesting order has been made and the schedule of the insolvent has been filed, the court has power, under section 245 b of the civil procedure code, to direct execution againat the person of the defendant by his arrest and imprisonment in cases of fraud or misconduct although the amount of the judgment debt is fully admitted by the insolvent in his schedule. - - section 49 seems to me to be clearly permissive and discretionary and not obligatory......therefore, be an astonishing measare for the high court in its original civil jurisdiction to grant a protection deliberately refused by the insolvent court. it was argued, however, on behalf of the defendant that section 49 of the insolvent act is imperative and that although the expression in that section is that the court 'may stay proceedings' still it must be construed as if the word 'shall' had been used. i cannot accede to this argument. section 49 seems to me to be clearly permissive and discretionary and not obligatory. the discretion is, however, a judicial discretion and not arbitrary. under the circumstances of this case i consider that i should not be acting rightly if i gave the defendant protection from arrest, when the defendant has been guilty of misconduct in.....
Judgment:

Tyabji, J.

1. This is an application under Section 245B of the Civil Procedure Code for execution of the decree by the arrest and imprisonment of the defendant. The defendant is an adjudicated Insolvent and he has admitted the full amount of the claim in his schedule. He applied to the Insolvent Court for protection against execution creditors. Such protection was however refused on the ground that the defendant had incurred the liability in question by fraud and misconduct. It is clear, therefore, that the Court especially established for protecting Insolvent Debtors has not thought it fit to grant to the defendant any protection against this creditor. It would, therefore, be an astonishing measare for the High Court in its Original Civil Jurisdiction to grant a protection deliberately refused by the Insolvent Court. It was argued, however, on behalf of the defendant that Section 49 of the Insolvent Act is imperative and that although the expression in that section is that the Court 'may stay proceedings' still it must be construed as if the word 'shall' had been used. I cannot accede to this argument. Section 49 seems to me to be clearly permissive and discretionary and not obligatory. The discretion is, however, a judicial discretion and not arbitrary. Under the circumstances of this case I consider that I should not be acting rightly if I gave the defendant protection from arrest, when the defendant has been guilty of misconduct in contracting the debt, in respect of which this decree is passed.

2. No application for attachment of the property has been made and therefore Mr. Bhandarkar's argument that the plaintiff would obtain an unfair advantage if this summons is made absolute has no solid foundation The whole property of the defendant is vested in the Official Assignee and is not, therefore, liable to be attached.

3. The application for the arrest and imprisonment of the defendant must, therefore, be granted.


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