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Raghunath Sahai Vs. Sukrit NaraIn Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All445
AppellantRaghunath Sahai
RespondentSukrit NaraIn Lal
Excerpt:
insolvent judgment-debtor - civil procedure code, section 351(b)--'property'--fraudulent intent. - - 263-4-0, and, no doubt, as my brother brodhurst has suggested, it is extraordinary, considering the well-to-do relatives that he has, that the amount due under so small a decree has not been satisfied. 2. the value of this right must necessarily be to a certain extent doubtful, and i cannot say that, because the appellant did not disclose it in his application, he should be regarded as guilty of bad faith in respect thereof......or removal of substantive property since the institution of the suit in which was passed the decree in execution of which the judgment-debtor was arrested or imprisoned, with intent to deprive the creditor or creditors of available assets for division. it does not seem to me to cover an omission by the judgment-debtor in his application for a declaration of insolvency of a statement as to his right to demand partition of ancestral estate in which he is a sharer, and certainly not where, as in the present case, there is no evidence of any intent to defraud. under the circumstances, our order will be that the appeal is allowed, and, reversing the refusal of the judge to entertain the petition, we direct him to restore the case to his file, and to dispose of it according to.....
Judgment:

Straight, J.

1. It appears to me that the Judge was wrong. The applicant in this case was arrested in execution of a decree for Rs. 263-4-0, and, no doubt, as my brother Brodhurst has suggested, it is extraordinary, considering the well-to-do relatives that he has, that the amount due under so small a decree has not been satisfied. But, after all, we have only to do with his own position as an imprisoned debtor seeking the protection of the Court, and to see whether the Judge was warranted in refusing his application to be declared an insolvent. He seems to be one of the three sons of a Hindu father, who, jointly with his two brothers and himself, holds ten ancestral villages in the Gorakhpur district, in which villages the appellant has at any time a right to demand a partition of his share, which right, it has been held, can pass by execution-sale to an auction-purchaser.

2. The value of this right must necessarily be to a certain extent doubtful, and I cannot say that, because the appellant did not disclose it in his application, he should be regarded as guilty of bad faith in respect thereof. The Judge was mistaken in supposing that such a case came within Section 351(b) of the Civil Procedure Code. That does not contemplate such a case as this, but one of an active concealment, transfer or removal of substantive property since the institution of the suit in which was passed the decree in execution of which the judgment-debtor was arrested or imprisoned, with intent to deprive the creditor or creditors of available assets for division. It does not seem to me to cover an omission by the judgment-debtor in his application for a declaration of insolvency of a statement as to his right to demand partition of ancestral estate in which he is a sharer, and certainly not where, as in the present case, there is no evidence of any intent to defraud. Under the circumstances, our order will be that the appeal is allowed, and, reversing the refusal of the Judge to entertain the petition, we direct him to restore the case to his file, and to dispose of it according to law.

Brodhurst, J.

3. I concur. Appeal allowed.


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