Lawrence Jenkins, K.C.I.E., C.J.
1. This is an appeal from the two orders of the Commissioner in Insolvency made on the 6th September 1905 and the 14th February 1906.
2. On the 16th May 1905 a petition was presented in the Insolvency Court by Haji Jan Mahomed Haji Mahomed and Haji Jakeria Haji Ahmed praying that the firm of Ebrahim Haji O.C. J. Sulleman and Company, and that of Tyeb Haji Sulleman and Co., and the members of those firms, might be adjudicated insolvents.
3.The petition alleged that the members of the firm were Abu Haji Ebrahim Haji Sulleman, Aboo Haji Sulleman, Moosa Haji Tyeb, Abdulla Haji Tyeb and Abdul Rahim Haji Tyeb. An order of adju- dication was made by Mr. Justice Batty on the 16th May 1905.
4. Moosa Haji Tyeb, Abdulla Haji Tyeb, and Abdul Rahim Haji Tyeb are admittedly minors and the order of adjudication against them has been set aside.
5. Ebrahim Haji Sulleman is said to be in East Africa and up to this time, as far as we are aware, no objection has been taken by him to the order of adjudication.
6. Aboo Haji Sulleman, however, the present appellant before us, on the 7th June 1905 obtained a rule for revocation of the adjudication against him.
7. On the 14th February 1906 that rule was discharged, and it is against that order of discharge that complaint is now made before us on appeal from the Commissioner.
8. It is said that Abu Haji Sulleman was not a member of the firm and in any case that there was no case for adjudication made on the petition presented to the Court.
9. Now the right of the creditor to obtain an adjudication is set forth in Section 9 of the Indian Insolvent Act, whereby it is provided that 'if a trader shall depart from within the limits of the jurisdiction of any of the supreme Courts with intent to defeat or delay his creditors, or with the like intent depart from his usual place of business or abode within the said jurisdiction, it shall be lawful for any two creditors to whom such person shall be indebted to the amount of seven hundred company's rupees, to present a petition to the Court for insolvent debtors of the presiuoncy within which such person shall have resided at the time of such departure, which petition may be in the form No. 2 in the Schedule (D) to this Act, with such additions and variations as may be necessary for that particular case ; whereupon, and upon such petition being duly verified, it shall be lawful for the Court to adjudge that such person has committed an act of insolvency.
10. The jurisdiction to adjudge that a person has committed an act of insolvency only arises when a petition complying with the conditions set forth in the section has been presented.
11. Now form No. 2 of the Schedule to the Act requires that the petition should state shortly act or acts of the insolvency relied on.
12. Therefore we have to see whether the petition states that Aboo departed from within the limits of the jurisdiction of this High Court with intent to defeat or delay his creditors or with like intent departed from his usual place of business or abode within the jurisdiction.
13. I can find no such allegation against Aboo.
14. The nearest approach to such an allegation is that 'all the members of the said firm who were in Bombay in British India have left and absconded.' But there is no allegation that Aboo ever was in Bombay and it is impossible to hold that this statement refers to him.
15. This objection was urged before the learned Commisssion-er before any evidence was taken and in my opinion, effect should have been given to it.
16. We must therefore reverse the order of the 14th February 1906 and make the rule absolute.
17. The appellant must have the costs of and incidental to the rule and of this appeal, and all orders against him for costs must be discharged.