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Balkrishna Ramchandra Konkar Vs. Calcutta Soap Works - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 471 of 1936
Judge
Reported in(1938)40BOMLR956
AppellantBalkrishna Ramchandra Konkar
RespondentCalcutta Soap Works
DispositionApplication dismissed
Excerpt:
provincial insolvency act (v of 1920), sections 28, 59-application to sue in forma pauperis-application filed after applicant's adjudication-insolvency proceedings pending-whether applicant competent to file suit in his name. ; in view of the provisions of sections 28 and 59 of the provincial insolvency act: 1920, it is not competent to an insolvent to file a suit in his own name after an adjudication order has been made against him and during the pendency of the insolvency proceedings. ; abdul rahman v. nihal chand [1935] a.i.r. all. 675, f.b. followed.; ramchandra v. shripati (1928) 31 bom. l.r. 357 distinguished. - .....all principles of insolvency to say that an insolvent after an adjudication order is competent to file a suit in his own name, and that is clear from a consideration of the provisions of sections 28 and 59 of the provincial insolvency act. mr. gajendragadkar, however, relies upon a decision inramchandra v. shripati (1928) 31 bom. l.r. 357 in which it does appear to have been held by a division bench of this court that an insolvent can file an appeal after an adjudication order against him. it is not necessary for me to express any opinion on that decision. whatever the position may be in case of appeals, i am now concerned with the question of a suit, and if the proposed suit is incompetent, as i hold it is, it is no use granting leave to file a suit in forma pauperis, because the order.....
Judgment:

Rangnekar, J.

1. This is an application against an order of the First Class Subordinate Judge of Poona rejecting an application made by the petitioner for leave to sue in forma pauperis. The learned Judge has rejected that application on merits. This is challenged by Mr. Gajendragadkar, and he says that the statement in the judgment that the applicant owns property valued at over Rs. 5,000 is obviously wrong. In the first place, it seems to me that it is a finding of the Court which I must accept for the purpose of an application under Section 115 of the Civil Procedure Code. But, apart from that, it: seems to me that there is another serious difficulty which has to be considered. The petitioner was adjudicated an insolvent on December 11, 1935. He applied for discharge on September 10, 1936, and those proceedings are pending. After the adjudication order, that is to say on December 28, 1935, he filed the present application. It seems to me that it is fundamentally opposed to all principles of insolvency to say that an insolvent after an adjudication order is competent to file a suit in his own name, and that is clear from a consideration of the provisions of Sections 28 and 59 of the Provincial Insolvency Act. Mr. Gajendragadkar, however, relies upon a decision inRamchandra v. Shripati (1928) 31 Bom. L.R. 357 in which it does appear to have been held by a division bench of this Court that an insolvent can file an appeal after an adjudication order against him. It is not necessary for me to express any opinion on that decision. Whatever the position may be in case of appeals, I am now concerned with the question of a suit, and if the proposed suit is incompetent, as I hold it is, it is no use granting leave to file a suit in forma pauperis, because the order would be infractuous. The view I am taking is supported by a decision in Abdul Rahman v. Nihal Chand : AIR1935All675 .

2. In this view, the application fails and must be dismissed with costs.


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