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Mahomed Haji Essack Elias Vs. Abdul Rahiman Shaik Abdul Aziz and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1916Bom180; 33Ind.Cas.694
AppellantMahomed Haji Essack Elias
RespondentAbdul Rahiman Shaik Abdul Aziz and ors.
Excerpt:
.....other fifty-four creditors should, as a matter of course, be allowed at this late stage to institute proceedings in respect of debts admitted in the schedule and partially satisfied by dividends declared in insolvency, in order that each of that may be in a position to harass the insolvent by proceedings for arrest. justice macleod in the case of this particular creditor, but we are concerned with the question whether his exercise of his discretion ought to be interfered with, and we are of opinion that there is no good reason for interference......in the opinion of the appeal court they should be at liberty to enforce their rights against the insolvent's person. but that is not equivalent to saying that every one of the other fifty-four creditors should, as a matter of course, be allowed at this late stage to institute proceedings in respect of debts admitted in the schedule and partially satisfied by dividends declared in insolvency, in order that each of that may be in a position to harass the insolvent by proceedings for arrest. at this stage we are not concerned with the question whether or not each of the judge? of this bench would have made the same order as mr. justice macleod in the case of this particular creditor, but we are concerned with the question whether his exercise of his discretion ought to be.....
Judgment:

1. There are two questions in this case. The first is whether the learned Judge in making the stay order which is under appeal acted without jurisdiction. It was contended that Section 18(3) was the only section which could apply and that only applied where a suit had been instituted before the adjudication order was made. We have, however, been referred to the observations of the Division Court in England in Browns combe v. Fair (1887) 58 L.T. 85, expressing the opinion that the corresponding words of Section 10 of the English Bankruptcy Act, which are practically identical with those of Section 18(3) of the Presidency Towns Insolvency Act, were wide enough to justify a stay of proceedings in an action which was not pending at the time of the order of adjudication.

2. The only other question is whether the learned Judge was wrong in exercising his discretion in the way he did to stay proceedings. The insolvent, it is true, has been guilty of many acts which incurred the Severe reprobation of the Judges both in the Insolvency Court and in the Court of Appeal, and for that reason it was held by the Court of Appeal that he should not be protected, after having his discharge refused, against such actions as his creditors might be in a position to take against him. The only effective appellant in the appeal was the judgment-creditor who was added during the pendency of the appeal. It is said there is one other judgment-creditor and the result of the appeal would be that, at all events, with regard to those judgment-creditors in the opinion of the Appeal Court they should be at liberty to enforce their rights against the insolvent's person. But that is not equivalent to saying that every one of the other fifty-four creditors should, as a matter of course, be allowed at this late stage to institute proceedings in respect of debts admitted in the schedule and partially satisfied by dividends declared in insolvency, in order that each of that may be in a position to harass the insolvent by proceedings for arrest. At this stage we are not concerned with the question whether or not each of the Judge? of this Bench would have made the same order as Mr. Justice Macleod in the case of this particular creditor, but we are concerned with the question whether his exercise of his discretion ought to be interfered with, and we are of opinion that there is no good reason for interference. If we were to interfere upon such materials as are before as, such interference would or might logically lead to consequences which would involve an abuse of judicial proceedings.

3. We, therefore, dismiss the appeal with costs.


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