Basil Scott, Kt., C.J.
1. On the 30th of April 1909, a petition was presented by a creditor of Haji fan Mahomed under Section 9 of the Indian Insolvent Act for his adjudication as an insolvent, alleging that, on the 20th April when in hopelessly insolvent circumstances, he fraudulently assigned over to Haji Jackeria Haji Ahmed Patel, by way of mortgage, all his property in British India in order to secure an alleged debt of three lakhs and a half. Upon that petition Haji Jan Mahomed was adjudicated an insolvent.
2. On the 18th June 1909, Haji Jackeria Haji Ahmed Patel applied to the Commissioner in Insolvency for a rule calling upon the petitioning creditor to show cause why the order of adjudication obtained by him should not be reviewed or revoked. He alleged that the order of adjudication was improperly obtained by making misrepresentations to the Commissioner. On the argument of the rule, it was objected that the applicant Haji Jackeria Haji Ahmed Patel had no locus standi to make such an application, and the learned Commissioner held that that was a good objection and on that ground discharged the rule.
3. An appeal has now been preferred under Section 73 of the Insolvent Act against both the order of adjudication of the 30th April 1909 and the order discharging the rule made on the 30th June 1909. The section provides that an appeal should be preferred to the High Court within one calendar month from the date of any adjudication, order or proceeding by which the appellant shall think himself aggrieved. The appeal is out of time with regard to the order of adjudication, but is within time with regard to the order passed by the Commissioner upon the rule. The question before us, therefore, is whether the last-mentioned order is right or wrong.
4. Section 73 is in the widest possible terms. It provides that it shall be lawful for any person who shall think himself A aggrieved by any adjudication, order, or proceeding of any such Court for the relief of insolvent debtors to present, within one calendar month thereafter, a petition of appeal; and it shall be lawful for the Court to make such order thereon as to the Court shall seem meet and just. It can hardly have been the intention of the legislature, however, to' provide that the Court of Appeal should have jurisdiction to make orders which are not within the jurisdiction of the Court appealed from, and it is, therefore, necessary to enquire whether the learned Judge was right in holding, as he did, that by reason of the terms of the proviso to Section 9 of the Act no one but the insolvent himself can apply for an order for the revocation of an adjudication. The terms of that proviso are practically identical with the terms of the proviso to Section II of the first Indian Insolvent Act, 9 Geo. IV., c. 73, and in considering what effect should be given to the words of the proviso, it is material to inquire what was the English practice with regard to such applications at the time of the passing of the first Indian Insolvent Act.
5. We find from Ex parte Bold (1788) 1 Cox 423, which was decided in 1788, that any person interested or affected by a fiat in bankruptcy might apply for its annulment to the proper Court. The same practice appears from Ex parte Lane In the matter of Fowler (1830) Montague 12 decided in the year 1830. The question appears to have been seriously argued before the Court of Review-in Bankruptcy, which was established by the Act I & 2 Will. IV, c. 56, Section 17, in the year 1834, in the case of Ex parte Jones (1834) 3 Deacon & C. 697. That was a petition by a trustee, under a trust deed executed by the bankrupt, praying that the flat might be annulled at the cost of the petitioning creditors. On behalf of the assignee, counsel took a preliminary objection, namely, that the petitioner, having possessed himself of all the property of the bankrupt under the trust deed, was not a creditor claiming under the fiat; that the object of the petition was to defeat the fiat, because it would overreach the deed; and that the petitioner had no locus standi in curia, claiming nothing under the fiat. It was, however, held that he had a locus standi to petition. Sir G. Rose said:
It is not because a party claims adversely to the Hat, tha,t he may not petition to supersede it. A judgment creditor may petition for this purpose and even a bare trustee under a deed, who is not a creditor, may apply for a supersedeas, on the ground that the fiat will prevent the execution ot his trust, and is therefore so far injurious to him. Here, the trustee will suffer a material grievance from the flat; because, if the fiat is proceeded with, the trust deed will then become inoperative, and ill that case, the trustee will be personally liable for all charges relating to it.
6. That case was followed in Ex parte Bean (1852) 1 De Gex M. & G. 486, which was a case very similar to the present, of an assignee of the bankrupt's property applying for the annulment of the adjudication; and there it was stated by the Commissioner that there were cases of successful applications of this kind although the interest of the creditor was adverse to that of the creditors at large and that the case of Ex parte Jones proved this but that still there must be a grievance on the part of the creditor- something of which he had a personal right to complain-that there must be merits on his part so that if his application were not acceded to, he would have a right to say, he was aggrieved.
7. In appeal the only question beside the merits of the application was whether the application had been made within time, and it was held that it was not an appeal against the original order of adjudication but against the refusal of the Commissioner to annul the adjudication. Now that case was decided in 1852 under the Bankruptcy Act of 1849. That Act contained in Section 106 a provision not dissimilar from that contained in the proviso to Section 8. Section 73 of the Indian Insolvent Act must, we think, be construed by the light of the continuous practice of the English Courts in matters of bankruptcy, and we hold that an assignee by deed of the property of an insolvent may be a person aggrieved who is entitled to come in and object to an order of adjudication. 9. Being of opinion, therefore, that the Commissioner should have entertained the application of the appellant and have held that he had a locus standi, we follow the course which was taken in Ex parte Athertun (1868) 3 Ch. App. 142, and send back the case to the lower Court for investigation on the merits, setting aside the order of the Commissioner of the Both June 1909. 10. Costs reserved to be dealt with by this Court after the decision of the Commissioner upon the merits of the adjudication.
8. Section 73 of the Indian Insolvent Act must, we think, be construed by the light of the continuous practice of the English Courts in matters of bankruptcy, and we hold that an assignee by deed of the property of an insolvent may be a person aggrieved who is entitled to come in and object to an order of adjudication.
9. Being of opinion, therefore, that the Commissioner should have entertained the application of the appellant and have held that he had a locus standi, we follow the course which was taken in Ex parte Athertun (1868) 3 Ch. App. 142, and send back the case to the lower Court for investigation on the merits, setting aside the order of the Commissioner of the Both June 1909.
10. Costs reserved to be dealt with by this Court after the decision of the Commissioner upon the merits of the adjudication.