Knox and Muhammad Rafiq, JJ.
1. Hakim Amin-ud-din is a judgment-debtor of one Kunwar Sheoraj Singh. There were proceedings in the court of Shahjahanpur prior to the proceedings out of which these proceedings have risen and with regard to those proceedings it is sufficient to say that Hakim Amin-ud-din did apply to be declared an insolvent. He was declared an insolvent and he was discharged under Section 351 of the Code of Civil Procedure of 1882. These proceedings relating to his discharge have been laid before us and we have examined them. We find that in one of them, i.e., an order by the District Judge, dated the 27th of January, 1904, it is set out, 'no other creditor except Ratan Lal proves his claim to-day, though called upon.' It was doubtless for this reason that no schedule was prepared and very properly so; for a schedule cannot be prepared by a court until the creditors have proved their claims. This was the law under the procedure prevailing up to the passing of the Provincial Insolvency Act of 1907.
2. In 1912 Sheoraj Singh applied to the court of the District Judge and he asked that certain property which had come into the possession of the judgment-debtor might be placed at the disposal of the Collector of Budaun, so that he might arrange for the payment of the debt due to Sheoraj.
3. The application was opposed by Hakim Amin-ud-din, the judgment-debtor, who said that he had been discharged from all debts and the court had no power to make the property which he had since acquired liable. The District Judge granted the application of Sheoraj and directed that one Saiyid Janab Ahmad who had been appointed receiver in 1910 should realize the assets of the insolvent and divide them between the two scheduled creditors, Ratan Lal and Sheoraj Singh.
4. It is this order which forms the subject of the present appeal.
5. We have looked at the record ourselves. We cannot find, and neither of the learned Counsel for the parties can point to, any schedule of creditors. Amin-ud-din in his memorandum of appeal himself says that as no schedule of creditors was prepared before the discharge of the insolvent the applicant cannot be allowed to proceed against the appellant. There being no schedule of creditors to this case Kunwar Sheoraj Singh cannot now enforce his decree as though he were a scheduled creditor.
6. The appeal prevails, the order of the court below is set aside, but we do not think this is a case in which the judgment-debtor is entitled to his costs.