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L. Parmeshwari Das Vs. Municipal Board and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All58a
AppellantL. Parmeshwari Das
RespondentMunicipal Board and anr.
Excerpt:
.....the court may, and in any case after the scheduled debts have been satisfied to the extent of one-third or after the expiry of 12 years from the order of discharge, the court shall declare the insolvent discharged as aforesaid absolved from further liability in respect of such debts......l. girdhari lal, defendant 2, applied to the district magistrate of bareilly for removal of the name of parmeshwari das from the electoral roll upon the ground that he was an undischarged insolvent. he was evidently moved to do so under the authority contained in section 14(3)(d), u.p. municipalities act (act 2 of 1916). the learned district magistrate removed the name of parmeshwari das from the roll by his order dated 30th november 1925. hence this suit for a declaration that parmeshwari das was a qualified voter, that he was not an undischarged bankrupt and that his name was properly entered in the electoral roll of the bareilly municipality.2. the suit was resisted principally on the ground that the plaintiff was, as a matter of fact, an undischarged insolvent and that his name.....
Judgment:

Sen, J.

1. The facts of the casa which have given rise to this appeal occupy a very narrow orbit and may be set out briefly. The name of L. Parmeshwari Das appears to have been recorded on the electoral roll of Ward No. 9 of the Municipal Board of Bareilly. L. Girdhari Lal, defendant 2, applied to the District Magistrate of Bareilly for removal of the name of Parmeshwari Das from the electoral roll upon the ground that he was an undischarged insolvent. He was evidently moved to do so under the authority contained in Section 14(3)(d), U.P. Municipalities Act (Act 2 of 1916). The learned District Magistrate removed the name of Parmeshwari Das from the roll by his order dated 30th November 1925. Hence this suit for a declaration that Parmeshwari Das was a qualified voter, that he was not an undischarged bankrupt and that his name was properly entered in the electoral roll of the Bareilly Municipality.

2. The suit was resisted principally on the ground that the plaintiff was, as a matter of fact, an undischarged insolvent and that his name had been properly removed from the roll. This plea was repelled by the Court of first instance, which decreed the suit. The lower appellate Court took a contrary view, reversed the decision of the trial Court and dismissed the suit. Hence this appeal.

3. We are clearly of opinion that the view taken by the lower appellate Court was unsound. In 1904 L. Parmeshwari Das applied to the learned District Judge of Bareilly to be declared an insolvent. He was adjudicated an insolvent by an order, dated 3rd February 1905. The learned District Judge wound up his order with the following observation:

'I grant the application and discharge the insolvent.' It is contended that L. Parmeshwari Das was a discharged insolvent by force of the order referred to above.

4. We have examined the scheme of the Civil Procedure Code which embodies the rules regulating insolvency. The pertinent sections are 351, 355 and 358. Under Section 351, if the Court was satisfied that the statements contained in the application for insolvency were true and there were I no indications of any mala fide on the part of the insolvent, the Court might declare the applicant to be an insolvent or might also, if it thought fit, make an order appointing a receiver of his property or if it did not appoint such a receiver, might discharge the insolvent. Under Section 355 where a receiver is appointed, upon his certifying that the insolvent had placed him in possession of all his property or had done everything in his power with a view to enable the receiver to take possession of the property, the Court might discharge the insolvent upon such conditions (if any) as the Court thought proper. Section 358 provides as follows:

If the aggregate amount of the scheduled debts is Rs. 200 or a less sum, the Court may, and in any case after the scheduled debts have been satisfied to the extent of one-third or after the expiry of 12 years from the order of discharge, the Court shall declare the insolvent discharged as aforesaid absolved from further liability in respect of such debts.

5. It is to be borne that the order of discharge is different from a protection order. The learned District Judge appears to have proceeded under Section 351, Civil P.C. He did not appoint any receiver and he thought that it was a proper case in which he might discharge the insolvent at once. Act 14 of 1882 does not make any distinction in terms between an absolute order and a conditional order of discharge. Under the said Act the insolvent was not bound to apply for a formal order of discharge as he is required to do under Section 44, Act 3 of 1907. The effect of the order of discharge is not necessarily to completely wipe off the debts at once. We have however no doubt in our minds that by reason of the order dated 3rd February 1905, Parmeshwari Das was discharged by the learned District Judge and that in the year 1925 he was a discharged insolvent. We are not required to consider the effect of the various sections in Act 3 of 1907 upon the status of Parmeshwari Das. If once he has been discharged as an insolvent the sections in the latter Act are not applicable to his case. We therefore hold that L. Parmeshwari Das was a discharged insolvent in 1905 that his name was properly entered in the electoral roll and that it was wrongly removed by the order dated 30th November 1925. We therefore allow this appeal, set aside the order of the lower appellate Court and restore that of the Court of first instance with costs, including fees in this Oourt on the higher scale.


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