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Devi Prasad Vs. J.A.H. Lewis - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All248; 43Ind.Cas.984
AppellantDevi Prasad
RespondentJ.A.H. Lewis
Excerpt:
civil procedure code (act v of 1908), section 60 - provincial insolvency act (iii of 1907), section 16(2)--insolvent's income, appropriation of, for benefit of creditors--court, whether can fix arbitrary amount. - .....be learnt that the insolvent was employed in the government printing press. on his return from calcutta the applicant presented a petition to the court of small causes, cawnpur, on the 15th of april 1916, praying that half the pay of the insolvent be attached and realised for the benefit of the creditors. a notice seems to have been issued on the application, to which the insolvent replied by a letter to the court dated the 15th may 1916. in that letter he explained that he was a european, had a large family, was living in calcutta and his pay was not sufficiently large to admit of half of it being attached. the learned judge, without fixing a date for hearing and giving notice to the creditor, rejected the application on the 20th of may 1916, saying that the creditor was absent, the.....
Judgment:

Rafique, J.

1. This is an application in revision by one of the creditors calling in question the order of the Court below dismissing his application made under Section 16 of Act III 1907. It appears that the opposite party, J.A.H. Lewis, was declared an insolvent on the 21st of February 1910 by the Small Cause Court Judge of Cawnpur. No Receiver was appointed by the Court to take possession of the property of the insolvent. The reason probably was that there was hardly any property to be made over, only a few mondhas, I am told, were available at the time. The insolvent left Cawnpur soon after. The applicant says that in 1916 when he went to Calcutta be learnt that the insolvent was employed in the Government Printing Press. On his return from Calcutta the applicant presented a petition to the Court of Small Causes, Cawnpur, on the 15th of April 1916, praying that half the pay of the insolvent be attached and realised for the benefit of the creditors. A notice seems to have been issued on the application, to which the insolvent replied by a letter to the Court dated the 15th May 1916. In that letter he explained that he was a European, had a large family, was living in Calcutta and his pay was not sufficiently large to admit of half of it being attached. The learned Judge, without fixing a date for hearing and giving notice to the creditor, rejected the application on the 20th of May 1916, saying that the creditor was absent, the insolvent was a European and his pay was not large enough that half of it should be attached. The applicant went in appeal to the District Judge who upheld the order of the first Court. In his application for revision to this Court the applicant contends, and I think rightly, that the reasons given by the Courts below are no reasons at all for rejecting his application made under Section 16 of Act III of 1907. When an appropriation of the income of an insolvent is made for the benefit of the creditors, the Court usually acts on the principle of giving to the creditors the surplus after allowing sufficient portion of the income for proper maintenance of the insolvent according to his position in life. The Statute-Law, in this country, has, however, fixed this proportion by Section 60 of the Civil Procedure Code, read with Section 161, Sub-section (2) of Act III of 1807. There is no Uale under which such an order as passed by the Courts below can be passed or upheld. I may here mention two cases which bear out the contention of the applicant, Ram Chandra Neogi v. Shama Charan Bese 21 Ind. Cas. 950 : 18 C.W.N. 1052 : 19 C.L.J. 83 and Tulsi Lal v. H. Girsham 38 Ind. Cas. 410 : 2 U.B.R. (1916) 132.

2. I, therefore, set aside the order of the Courts below and direct the Court of first instance to attach half the pay of the insolvent. Costs are allowed to the applicant.


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