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Harnam Chandar Vs. Rup Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All382
AppellantHarnam Chandar
RespondentRup Chand and ors.
Excerpt:
- .....is a first appeal by defendant 1 who is a creditor who holds a decree against defendant 4, one shib singh. the plaintiffs in the suit were four sons of shib singh and they sued for and obtained a declaration that certain property was not saleable or attachable under certain decrees one of which was the decree of the appellant against shib singh. the decree of the court of first instance was made on 15th september 1928, and prior to that date on 24th august 1928, shib singh was adjudged an insolvent. the appellant has named shib singh as one of the respondents, and he has not made the official receiver a party. a preliminary objection is taken on behalf of certain respondents, firstly to the effect that the appellant had not had the permission to bring this appeal and secondly, that.....
Judgment:

Bennet, J.

1. This is a first appeal by defendant 1 who is a creditor who holds a decree against defendant 4, one Shib Singh. The plaintiffs in the suit were four sons of Shib Singh and they sued for and obtained a declaration that certain property was not saleable or attachable under certain decrees one of which was the decree of the appellant against Shib Singh. The decree of the Court of first instance was made on 15th September 1928, and prior to that date on 24th August 1928, Shib Singh was adjudged an insolvent. The appellant has named Shib Singh as one of the respondents, and he has not made the Official Receiver a party. A preliminary objection is taken on behalf of certain respondents, firstly to the effect that the appellant had not had the permission to bring this appeal and secondly, that the Official Receiver should be made a party as representing the estate of Shib Singh. In regard to the first objection learned Counsel for respondents argues that Section 28(2), Provincial Insolvency Act, stated that

on the making of an order of adjudication...no creditor...shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceedings, except with the leave of the Court on such terms as the Court may impose.

2. Learned Counsel argued that this appeal was a legal proceeding and as the appellant had not got the permission of the insolvency Court, therefore the appellant was not entitled to commence this appeal. We consider however that the words 'commence any suit or other legal proceeding' must be read in conjunction with something else in the sub-section, for if they were read independently, they would prevent a creditor from indulging in any litigation at all. The expression in the subsection which must govern this clause is 'have any remedy against the property of the insolvent in respect of the debt.' The present appeal is not an appeal of that nature. All that the appellant asks is that a declaratory decree should be set aside. That declaratory decree was that property was not attachable under the decree of the appellant. The effect of the appeal being allowed would be a declaratory decree that the property was attachable under the decree of the appellant. That we consider would not be a remedy against the property of the insolvent within the meaning of Section 28. No doubt, if the appellant having obtained a decree on appeal from this Court proceeded to apply for execution, then he might possibly be met with the bar of Section 28(2), but that section does not bar the present appeal.

3. The next point which was urged was the second objection that the Official Receiver should represent the estate of the insolvent Shib Singh as a respondent. We consider that this objection is sound and, as the learned Counsel for the appellant has undertaken to apply today to make the Official Receiver a party, we adjourn this appeal for a sufficient period for the Official Receiver to be brought on the record. Costs will abide the result of the appeal.


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