Skip to content


Gopal Das Vs. Bihari Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All218
AppellantGopal Das
RespondentBihari Lal
Excerpt:
.....of, the trust funds in respect of which the decree was obtained, refused to declare babu gopal das an insolvent. viii of 1859, as far as those cases were concerned, were the words by which the plaintiff may make proof that the defendant, for the purpose of procuring his discharge without satisfying the decree, has willfully concealed property or his rights or his interests therein, of fraudulently transferred or removed property or committed any other set of bad faith. ' it is obvious that the 'other act of bad faith,'to be within that section, must have been committed by the defendant for the purpose of procuring his discharge without satisfying the decree. it is contended, however, that the other act of bad faith mentioned in clause (d) of section 351 must be an act of.....john edge, kt., c.j.1. in this case bihari lal obtained a decree against babu gopal das in his capacity of trustee: he also was entitled under a decree in appeal in the suit to costs. bihari lal proceeded to execute the decree. in execution of that 'decree babu gopal das was arrested. babu gopal das applied under section 344 of the code of civil procedure to be declared an insolvent. the court, taking into consideration the bad faith and fraud in the matter of the misappropriation of, the trust funds in respect of which the decree was obtained, refused to declare babu gopal das an insolvent. from that order babu gopal das has appealed to this court.2. it has been contended that the court was not justified under section 351 of the code of civil procedure in rejecting the application of.....
Judgment:

John Edge, Kt., C.J.

1. In this case Bihari Lal obtained a decree against Babu Gopal Das in his capacity of trustee: He also was entitled under a decree in appeal in the suit to costs. Bihari Lal proceeded to execute the decree. In execution of that 'decree Babu Gopal Das was arrested. Babu Gopal Das applied under Section 344 of the Code of Civil Procedure to be declared an insolvent. The Court, taking into consideration the bad faith and fraud in the matter of the misappropriation of, the trust funds in respect of which the decree was obtained, refused to declare Babu Gopal Das an insolvent. From that order Babu Gopal Das has appealed to this Court.

2. It has been contended that the Court was not justified under Section 351 of the Code of Civil Procedure in rejecting the application of Babu Gopal Das, and could not for the purposes of that section take into consideration what were the circumstances under which the liability which ended in the decree in execution arose. In support of that contention Mr. Fateh Chand, for the appellant, cited the cases of In the matter of_--a prisoner in the Great Jail, 1 Indian Jurist, p. 8, In re Soopersaud, 2 Indian Jurist, p. 90, In re Khettsey Das 3 B.L.R. App. 14, Butler v. Lloyd 12 B.L.R. APP. 12, Smith v. Boggs, 5 B.L.R., App. 21, In re Gurudas Bose, 7 B.L.R., App. 23, and Salamat Ali v. Minahan I.L.R. 4 All. 337, and he referred us to Bavvachi Packi v. Pierce Leslie. Co., I.L.R. 2 Mad. 219, as opposed to his contention.

3. To dispose of these cases to which we have been referred in Lower Bengal, it is difficult as to some of them to ascertain whether Act No. VIII of 1859 was or was not the Act which applied. In some of them Section 281 of Act No. VIII of 1859 appears to have been the section upon which the decision was based. None of those cases were decided on the construction of Section 351 of the present Code of Civil Procedure. There is one decision on the construction of Section 281 of Act No. VIII of 1859, but that decision cannot in our opinion be applied to the construction of Section 351 of Act No. XIV of 1882., The object of the two sections was essentially different, and the effect of an order under one of those sections is different from the effect of an order under the other. The governing words in Section 281 of Act No. VIII of 1859, as far as those cases were concerned, were the words by which the plaintiff may make proof that the defendant, for the purpose of procuring his discharge without satisfying the decree, has willfully concealed property or his rights or his interests therein, of fraudulently transferred or removed property or committed any other set of bad faith.' 'It is obvious that the 'other act of bad faith,' to be within that section, must have been committed by the defendant for the purpose of procuring his discharge without satisfying the decree. The discharge in that case was the discharge from jail, and not from the debt. Section 281 of Act No. VIII of 1859, dealt only with the question between the particular creditor who had caused his judgment-debtor to be arrested and the particular judgment-debtor who was arrested, whereas Section 351 of the Code of Civil Procedure deals with the order to be made upon an application to declare a judgment-debtor an insolvent, which declaration, if made, would affect not only the creditor who was executing his decree against the person or the property of the judgment-debtor, but all the scheduled creditors.

4. Section 351 of Act No. XIV of 1882 is essentially different in its terms to Section 281 of Act No. VIII of 1859. It is true the matters to be inquired into in Clause (b) of Section 351 are confined to concealments, transfers and removals of property subsequent to the institution of the suit in which the decree in execution was passed with intent to defeat creditors. Clause (c) of Section 351 relates to matters which might be anterior or might be subsequent to the institution of the suit in which the decree in execution was passed, and certainly authorises an inquiry into matters preceding the application to be declared an insolvent. It is contended, however, that the other act of bad faith mentioned in Clause (d) of Section 351 must be an act of bad faith in or during the pendency of the application to be declared an insolvent. In our opinion there is nothing in Clause (d) to so limit the scope of the inquiry. If the contention of the judgment-debtor were correct, the general words 'any other act of bad faith regarding the matter of the application' in Clause {d) could not be construed as ejusdem generis with the words in Clauses (b) and (c). It appears to us that 'any other act of bad faith' mentioned in Clause (d) means any act of bad faith not in Section 351 before mentioned which bore directly upon the conduct of the debtor in the matters leading up to his application for insolvency, and would not exclude any act of bad faith by which he had incurred a then still subsisting liability to any of his creditors, whether the particular creditor was or was not the creditor whose decree was in execution, and whether or not the bad faith was connected with the liability which resulted in that decree. In our opinion the High Court of Madras in Bavachi Packi v. Pierce, Leslie & Co. I.L.R. 2 Mad. 219, correctly held in reference to the construction of Clause (d) of Section 351 that 'the matter of the application embraces the insolvency and all the facts and circumstances material to explain the insolvency.' This view is inconsistent with a decision of this Court in Salamat Ali v. Minatian I.L.R. 4 All. 337. It is to be observed that in that case this Court was influenced by the findings of facts.

5. With this expression of opinion the Bench which referred the question will be left to deal with the appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //