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Bisheshar Singh Vs. Rameshar Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad High Court
Decided On
Reported in(1885)ILR7All734
AppellantBisheshar Singh
RespondentRameshar Singh
abatement of appeal - application for declaration of insolvency--appeal from order rejecting application--death of decree-holder-respondent--no application by appellant for substitution--act xv of 1877 (limitation act), schedule ii, no. 171b--civil procedure code, sections 344-348, 350, 351, 368, 553, 582, 590. - .....the defendant. by the rule of interpretation contained in the second paragraph of section 3 of the code, article 171s of the limitation act must be construed with reference to section 368 of the present civil procedure code. beading section 368 with section 582 of the code, it is clear that the word defendant in section 368 includes a respondent, and article 1715 of the limitation act is applicable to the case of a defendant, and it follows that that article applies to the present case.12. no application having been made within the time allowed by article 1715, the appeal must abate under the last clause of section 368, read with sections 582 and 590 of the civil procedure code, with costs.oldfield, j.13. i concur, although with some hesitation, in holding that this appeal must abate, as.....

Mahmood, J.

1. In my opinion this appeal must abate. The decree-bolder-respondent, Bisheshar Singh, is stated by the learned pleaders for the parties to have died on the 4th September 1884, and no application for the substitution of his legal representatives has been made by the appellant, nor is there anything stated on his behalf as a sufficient cause for not making the application. Pershid Narain, the son of the deceased respondent, has, however, applied to be substituted as the legal representative of the deceased, and, by an order of the 26th March 1885, his name has been substituted. The learned pleader who appears for him, however, argues that, the application not having been made within the time provided by Article 171B of Schedule ii of the Limitation Act (XV of 1877), we are bound by law to order that the appeal shall abate. For this contention the learned pleader relies on the last part of Section 368 of the Civil Procedure Code (read with Sections 647, 582 and 590), and Section 4 of the Limitation Act. On the other hand, the learned pleader for the appellant, whilst conceding that the period provided by Article 171B, Schedule ii of the Limitation Act, has expired, contends, with reference to the recent Full Bench ruling of this Court in Narain Das v. Lajja Ram ante p. 693 that the appellant should be regarded as a 'defendant,' and that his appeal must therefore be held to be absolutely free from liability to abatement, whether he impleaded any one as representative of the deceased respondent or not, and the only effect of his omission to implead the respondent's heir should be, to allow the appeal, and to set aside the order of which the appellant complains, or, failing this, to dispose of this appeal on the merits.

2. I confess that I cannot understand the Ball Bench ruling of the majority of the Court to have any other effect; but the ruling is not, in my opinion, applicable to the present case.

3. Whatever the position of the parties may have been in the regular suit, the judgment-debtor-appellant in the insolvency proceedings, under Chapter XX of the Civil Procedure Code, occupied a position analogous to that of a plaintiff.

4. Section 344 of the Civil Procedure Code allows the judgment-debtor, who may, of course, have been either plaintiff or defendant in the regular suit, to make an application for declaration of insolvency; Section 345 states the contents which must form the application, and, among these, Clause (f) relates to the creditors who would be affected by such declaration of insolvency; Section 346 lays down that 'the application shall be signed and verified by the applicant in manner hereinbefore prescribed for signing and verifying plaints;' and Sections 347 and 348 provide that a copy of the application and notice must be served upon creditors, &c.;, who occupy a position analogous to that of defendants. Section 350 provides for a hearing of the case in the presence of the contending parties, and Section 351 lays down rules for adjudication either in favour of the applicant or the opposing parties.

5. Reading these provisions of the law together, I am of opinion that the position of an applicant for a declaration of insolvency is sufficiently analogous to that of a plaintiff in a regular suit. I arrive at this conclusion, especially, not only because the applicant is the person who moves the Court and prays the Court to grant him a specific remedy, viz., an adjudication of insolvency, but also because, referring to Sections 344, 345 and 346, and reading them with g. 553 of the Code, the provisions which apply to plaintiffs-appellants also apply to the judgment-debtor-appellant in these proceedings.

6. Whatever the position of a judgment-debtor may be in the regular suit, in the insolvency proceedings he is the plaintiff. The Court which had jurisdiction to decide the regular suit, had not necessarily jurisdiction to decide the application for insolvency, because Section 349 lays down that such application should be made to the District Court, which is the highest Court having jurisdiction to decide ordinary original civil oases.

7. It has been argued that the position of the judgment-debtor-appellant is not absolutely analogous to that of the plaintiff in a regular suit; in the first place, because he (the judgment-debtor) would be defendant in the regular suit; and, in the next place, the rules applicable to the plaintiff in the regular suit did not apply to him, because his complaint, petition or prayer did not involve the array of creditors as defendants, nor could the creditors be in any sense regarded as 'defendants' to such a proceeding.

8. The argument is plausible, but has no real force.

9. No doubt, in an insolvency proceeding, the Court has not to deal with the claim of A against B as specific parties, but has to deal with the petitioner's prayer for declaration of insolvency as against such creditors as may appear to oppose the application as against the whole world. Section 41 of the Evidence Act deals with the effect of such adjudications. Judgments passed by the Court in such proceedings would be judgments in rem, binding not only upon the specific defendants, but upon the whole world. So far as the question of array of parties is concerned, the parties arrayed against the petitioner (who claims to be declared insolvent) are the creditors who would appear on the issue of the citation or who are named by the applicant. The position of the appellant being that of a plaintiff, the position of the decree-holder is that of the defendant, and, as a matter of fact, in this case the appellant did implead the decree-holder in his petition. The decree-holder-respondent having died, it was the appellant's duty to have some representative of the respondent substituted for him.

10. In this view, Section 368 is applicable to the present case, because, though relating to suits, it has been made applicable to miscellaneous proceedings by Section 647, and also to appeals from orders by Section 590 of the Civil Procedure Code. It was the duty of the appellant to apply within the time prescribed by law, under Article 1715, Schedule ii, of the Limitation Act.

11. This article is somewhat curiously worded, in that it only mentions the defendant. By the rule of interpretation contained in the second paragraph of Section 3 of the Code, Article 171S of the Limitation Act must be construed with reference to Section 368 of the present Civil Procedure Code. Beading Section 368 with Section 582 of the Code, it is clear that the word defendant in Section 368 includes a respondent, and Article 1715 of the Limitation Act is applicable to the case of a defendant, and it follows that that article applies to the present case.

12. No application having been made within the time allowed by Article 1715, the appeal must abate under the last clause of Section 368, read with Sections 582 and 590 of the Civil Procedure Code, with costs.

Oldfield, J.

13. I concur, although with some hesitation, in holding that this appeal must abate, as no one has been brought on the record to represent the deceased respondent within the term of limitation. Dismissed with costs.

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