Knox and Aikman, JJ.
1. This order (i.e., that under the last clause of Section 359 of the Code of Civil Procedure), it is hardly necessary to point out, was certainly not one in accordance with law. All that the last clause of Section 359 authorises under certain circumstances, which did not arise in the present case, as there had been an order passed under the first clause of the section, is that the Court may send an applicant for insolvency before it to the Magistrate to be dealt with according to law In the present case the Judge had already adopted the first of the two courses prescribed in Section 359 and had no power to have recourse to the second alternative. The meaning of this section appears to have been somewhat misunderstood. What the section requires is that if a Court be moved thereto by a creditor it shall, under the circumstances set out in the section, sentence the applicant to imprisonment. This is the only course open to a Court when set in motion at the instance of the creditors. If there be no application by any creditor, the Court is still empowered, if it consider the case calls for such an order, to proceed suo motu and to send the applicant to the Magistrate. It cannot, unless moved by a creditor, pass an order of imprisonment. The case of Kadir Bakhsh v. Bhawani Prasad I.L.R. 14 Ali. 145, (Edge, C.J. and Straight, J.) was cited to us in the course of the argument. There are certain expressions in the judgment in that case which appear to be opposed to the view we have taken. STBAIGHT, J., there held that when a creditor applied to a Court to exercise its jurisdiction under Section 359 it was open to the Court either itself to punish the applicant for insolvency or to send him before a Magistrate to be dealt with according to law. In our opinion the wording of the section is against this interpretation. Omitting the words immaterial to the decision of the point raised, the section runs as follows:
Whenever at the hearing under Section 350 it is proved that the applicant has (a) been guilty, &c.;,--the Court shall, at the instance of any of his creditors, sentence him by order in writing to imprisonment for a term which may extend to one year from the date of committal; or, the Court may, if it think fit, send him to the Magistrate to be dealt with according to law.
2. The repetition in the last clause of the words 'the Court,' and the fact that the word 'shall' is used in the one clause and the word 'may' in the other lead us to think that the one course is not intended to be an alternative to the other when the Court is set in motion by a creditor. Had an alternative been intended we should have expected to find the word 'shall' in both clauses or the word 'may' in both clauses.
3. The insertion of the words 'at the instance of any of his creditors' between the words 'shall' 'and sentence' support the same view.
4. The intention of the Legislature apparently was to restrict the Court to the one course of sending the applicant to be dealt with by a Magistrate when the Court of itself, and without being moved thereto by a creditor, comes to the conclusion that the applicant should be punished for any act of bad faith he is proved to have committed; and the reason probably is that, in this event, the Court is, as it were, itself the prosecutor.
5. We have the authority of the learned Chief Justice for saying that he concurs in the interpretation which we now put upon this section.
6. To return to the order from which this appeal is filed. It is contended that that order and all the proceedings taken after the 22nd of June 1891 are without jurisdiction; that the Judge could not revive the proceedings, and that no fraud on the part of the appellant had been proved at any hearing under Section 350. It appears to us that this contention is good and must prevail. The only authority in the Code of Civil Procedure for withdrawal of proceedings once commenced before a Civil Court is that contained in Section 373, which by Section 647 applies to proceedings under Chapter XX of the Code. That section gives a plaintiff, and similarly in the case before us gave the applicant, a choice of withdrawing from a suit or application with or without the permission' of the Court before Which his suit or application stands. No restriction of any kind; is placed upon his withdrawing without permission of the Court: he is liable; if he so withdraws, for such costs as the Court may award, and is precluded; from bringing a fresh suit or application in the same matter. This is totally I different from a power given to a Court, as is given in other sections of the Code, to make the payment of costs precedent to an order which the Court intends to pass. The only case in which a Court may, under this section, impose any condition upon a plaintiff who seeks to withdraw is where that plaintiff asks the Court for permission, not only to withdraw, but also for liberty to bring a fresh suit for the same subject matter. In this case the applicant stated that he withdrew without any further thought or suggestion that he intended to, or wished to, bring a fresh application. The case fell within the second paragraph of Section 373, and the order passed by the Court should have been to the effect that as the applicant has asked to withdraw from the application he be adjudged to pay the costs of the opposing creditors. It follows therefore that any condition imposed by the Judge as to costs being paid precedent to permission to withdraw was without jurisdiction and must be regarded as mere surplusage. The proceedings determined on the 22nd of June 1891, and no longer subsisted after that date for any purpose whatsoever. At the hearing it was contended that an applicant for insolvency finding the case going against him, and after trouble taken by the creditors to prove fraud, might, if he could withdraw unconditionally, by so doing escape the penalties provided by law under Section 359 for the punishment of fraudulent debtors. Such an argument overlooks the existence in the Code of Section 643, which in our opinion does provide for and meet such a contingency. In view of the above finding it becomes unnecessary for us to take up the question of fraud, and we would only remark here that up to the 22nd of June 1891 no fraud had been proved, and no evidence of fraud given even after that date. The affidavit filed by the Bank and the very qualified admission made by the pleader for Hafiz Syed Haidar Shah, do not amount to proof of fraud. For these reasons we allow this appeal and set aside the order of the Court below with costs. There was an application filed in connection with this appeal by one Shankar Lal. It was not supported, and therefore it stands dismissed.