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Debi Prasad Vs. J. A. H. Lewis - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1918)ILR40All213
AppellantDebi Prasad
RespondentJ. A. H. Lewis
Excerpt:
.....(a) - civil procedure code, 1908, section 60--insolvency--attachment of half the salary of the insolvent. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and..........he learnt that the insolvent was employed in the government printing press. on his return from calcutta the applicant presented a petition to the court of small causes, cawnpore, on the 15th of april, 1916, praying that half the pay of the insolvent be attached and realized for the benefit of the creditors. a notice seems to have been issued on the application, to which the insolvent replied by a letter to the court, dated the 15th of may, 1916. in that letter he explained that he was a european; had a large family; was living in calcutta, and his pay was not sufficiently large to admit of half of it being attached. the learned judge, without fixing a date for hearing and giving notice to the creditor, rejected the application on the 20th of may, 1916, saying that the creditor was.....
Judgment:

Muhammad Rafiq, J.

1. This is an application in revision by one of the creditors calling in question the order of the court below dismissing his application made under Section 16 of Act III of 1907. It appears that the opposite party, J. A. H. Lewis, was declared an insolvent on the 21st of February, 1910, by the Small Cause Court Judge of Cawnpore. No receiver was appointed by the court to take possession of the property of the insolvent. The reason probably was that there was hardly any property to be made over; only a few mondhas, I am told, were available at the time. The insolvent left Cawnpore soon after. The applicant says that in 1916, when he went to Calcutta, he learnt that the insolvent was employed in the Government Printing Press. On his return from Calcutta the applicant presented a petition to the Court of Small Causes, Cawnpore, on the 15th of April, 1916, praying that half the pay of the insolvent be attached and realized for the benefit of the creditors. A notice seems to have been issued on the application, to which the insolvent replied by a letter to the court, dated the 15th of May, 1916. In that letter he explained that he was a European; had a large family; was living in Calcutta, and his pay was not sufficiently large to admit of half of it being attached. The learned Judge, without fixing a date for hearing and giving notice to the creditor, rejected the application on the 20th of May, 1916, saying that the creditor was absent; the insolvent was a European, and his pay was not large enough that half of it should be attached. The applicant went in appeal to the District Judge, who upheld the order of the first court. In his application for revision to this Court the applicant contends, and I think rightly, that the reasons given by the courts below are no reasons at all for rejecting his application made under Section 16 of Act III of 1907. When an appropriation of the income of an insolvent is made for the benefit of the creditors, the Court usually acts on the principle of giving to the creditors the surplus after allowing sufficient portion of income for the proper maintenance of the insolvent according to his position in life. The statute-law, in this country, has, however, fixed this proportion by Section 60 of the Civil Procedure Code, read with Section 16, Sub-Section 2, of Act III of 1907. There is no rule under which such an order as that passed by the courts below can he passed or upheld. I may here mention two cases which bear out the contention of the applicant, Ram Chandra Neogi v. Shyama Charan Bose ((1913) 18 C. W. N. 1052.) and Tulsi Lal v. H. Girsham ((1917) ( ) 38 Indian Cases, 410.).

2. I therefore set aside the order of the courts below and direct the court of first instance to attach half the pay of the insolvent. Costs are allowed to the applicant.


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