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Moses Menahim Vs. AhraIn Solomon - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Refernce No. 2 of 1922
Judge
Reported inAIR1923Bom233; (1923)25BOMLR155; 84Ind.Cas.684
AppellantMoses Menahim
RespondentAhraIn Solomon
Excerpt:
provincial insolvency act (v of 1920) - insolvent-receiver of insolvents improperly-powers of the receiver to get in estate of the insolvent-aden settlement-receiver appointed under the spirit of the act-receiver's rights and duties.;a receiver, appointed by the resident's court at aden, not under the provisions but under the spirit of the provincial insolvency act, cannot make an order against the debtors of the insolvent. he can only call upon them to pay what they owe to the insolvent, but if they do not obey the demand, he must seek his remedy by suit.;if such a receiver makes an order against the debtors of the insolvent, the aggrieved party can appeal to the court appointing the receiver or to the higher court against the order. it is not permissible to the party to file a suit. - .....order with the appointment of a receiver with powers which a receiver would have under the provincial insolvency act. then, on july 27, 1920, the registrar purported to make the order which is now in dispute. i may say at once that the proceedings taken by the registrar bear no analogy to any proceedings that a receiver could take under the provincial insolvency act. such a receiver cannot make an order against debtors of the insolvent. he can call upon them to what they owe to the insolvent, but if they do not obey the demand, he must seek his remedy by suit. the proper course then for the plaintiffs to have followed was to appeal to the court which appointed the receiver, or to the district court asserting that the receiver had no powers under the order appointing him to take.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is a reference under the Aden Jurisdiction Act in the matter of three suits filed by three different Plaintiffs against the same defendant Ahrain Solomon to set aside an order passed by the Court of the Registrar dated July 27, 1920. The facts are peculiar. A decree having been passed against Ahrain Solomon in Suit No. 97 of 1920 he was arrested in execution. He submitted to the Court that he was unable to pay his debts and asked for relief. On that application the Court operation in Aden but the Court being enjoined to act generally on the spirit of Indian laws, it is ordered that the Registrar be appointed Receiver in this case and take all action essential to the settlement of applicant's affairs.

2. I Presume the Court thought that it was making an order which was something in the nature of an adjudication order with the appointment of a receiver with powers which a receiver would have under the Provincial Insolvency Act. Then, on July 27, 1920, the Registrar purported to make the order which is now in dispute. I may say at once that the proceedings taken by the Registrar bear no analogy to any proceedings that a receiver could take under the Provincial Insolvency Act. Such a receiver cannot make an order against debtors of the insolvent. He can call upon them to what they owe to the insolvent, but if they do not obey the demand, he must seek his remedy by suit. The proper course then for the plaintiffs to have followed was to appeal to the Court which appointed the receiver, or to the District Court asserting that the receiver had no powers under the order appointing him to take the action which he had done. Whatever the proper course to follow may have been, we think that the present suits were not competent, filed as they were against the execution creditor and the judgment-debtor. There was no cause of action against them, unless these proceedings could be considered as proceedings taken in execution under Order XXI, Civil Procedure Code. But that is a supposition which is excluded by the terms of the order passed by the Assistant Resident. We send back the papers with this expression of our opinion that the Resident was right in thinking that the plaintiffs' suits were not competent. We also point out that the action of the Registrar was not warranted by the provisions of the Indian Provincial Insolvency Act, and that if the Resident's Court passes orders based on the spirit of the Indian laws, then it ought to consider what are the provisions of these laws. For instance, if a receiver is appointed, he should be given such powers as are given to receivers under the Provincial Insolvency Act. We think that the present plaintiff's should be allowed to appeal either to the Assistant Resident, or to the Resident against the action of the Registrar, and no doubt effect will be given to our expression of opinion that the action of the Registrar was ultra vires. No order as to costs.


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