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Mt. Kamla Bai Vs. B. Chitra Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All59; 173Ind.Cas.875
AppellantMt. Kamla Bai
RespondentB. Chitra Prasad and ors.
Excerpt:
- .....runs as follows : 'if he is imprisoned in execution of the decree of any court for the payment of money'.3. clause (e) and clause (h) do not refer to acts done by the debtor of his own volition but have reference to enforcement of processes in execution of decrees by execution courts. it is however apparent that both the said clauses have application only to decrees 'for the payment of money'. at the phrase 'for the payment of money' has been used in both clauses (e) and (h), the phrase must be given a similar meaning in both the clauses. it is manifest that a debtor can be imprisoned in execution of a decree for payment of money only if he is personally liable for the decretal amount and not in execution of a decree which ho is liable to pay in his capacity as the legal representative.....
Judgment:

Iqbal Ahmad, J.

1. The question that arises for consideration in the present application in revision is whether the sale of property in execution of a decree passed against a person in his capacity as a legal representative of a deceased person amounts to an act of insolvency within the meaning of Section 6(e), Insolvency Act, Act 5 of 1920. The question was answered in the negative by the Madras High Court in Nagasubrahmania Mudaliar v. Krishnamachariar (1927) 14 A.I.R. Mad. 922. It was held in that case that until there is a personal decree under Section 52, Civil P.C., a decree against a person as the legal representative of another does not make him liable to adjudication under the Provincial Insolvency Act. There are also certain observations in Baij Nath v. Gajadhar Prasad (1935) 22 A.I.R. Oudh 406 that are in consonance with the view taken by the Madras High Court. It is provided by Section 6(e), Insolvency Act, that:

A debtor commits an act of insolvency, (e) if any of his property has been sold in execution of the decree of any Court for the payment of money.

2. It is contended in the present case on behalf of the petitioning creditor who is the opposite party before us that as the words of Clause (e) of Section 6 are general in terms the clause must be taken to cover even those cases in which a decree for the pay merit of money has been passed or is outstanding against a person in his capacity as the legal representative of a deceased debtor. In this connection it is urged that there are no words of limitation in Clause (e) that can warrant the interpretation put upon that clause by the Madras High Court. In our judgment the contention advanced on behalf of the opposite party is without substance. A perusal of Section 6, Insolvency Act, puts it beyond doubt that the acts of insolvency referred to in Clauses (a), (b), (o), (d), (f) and (g) of that section refer to voluntary acts by the debtor and those voluntary acts amount to the commission of an act of insolvency by him. The only other sub-clauses of that section that remain for consideration are Clauses (e) and (h). Sub-clause (e) has already been quoted above. Clause (h) runs as follows : 'If he is imprisoned in execution of the decree of any Court for the payment of money'.

3. Clause (e) and Clause (h) do not refer to acts done by the debtor of his own volition but have reference to enforcement of processes in execution of decrees by execution Courts. It is however apparent that both the said clauses have application only to decrees 'for the payment of money'. At the phrase 'for the payment of money' has been used in both Clauses (e) and (h), the phrase must be given a similar meaning in both the clauses. It is manifest that a debtor can be imprisoned in execution of a decree for payment of money only if he is personally liable for the decretal amount and not in execution of a decree which ho is liable to pay in his capacity as the legal representative of a deceased debtor. In Clause (h) the words 'for the payment of money' must therefore be interpreted as meaning 'decrees that are personally enforceable against the judgment-debtor'. That being so, the same interpretation must be put on that phrase in Clause (e). It is one of the recognized canons of construction that the words used in a statute must be given similar meanings unless such an interpretation leads to obvious anomalies or absurdities.

4. We may note in passing that in construing the words 'for the payment of money' in Clause (e) in the way that we are doing, we are not only interpreting that phrase in consonance with the interpretation that that phrase bears in Clause (h) but are also avoiding an interpretation that would lead to manifest injustice and hard, ship. To hold that the decree 'for the payment of money' referred to in Clause (e) embraces decrees passed against a debtor in his capacity as the legal representative of a deceased person would be to put a lever in the hand of a dishonest decree-holder for bringing undue pressure on a person who is liable to satisfy a decree only in his capacity as the legal representative of some person, whose property has devolved on him. Cases may be conceived in which a debtor may die indebted in a large amount and leaving property of comparatively small value. The property must devolve on his heir and that heir will in accordance with the provisions of Section 52, Civil P.C., be liable to satisfy the decrees passed for those debts from the property that he has inherited from the deceased debtor. But if we were to accept the interpretation sought to be put on Clause (e) by the learned Counsel for the opposite party, we would have to hold that the decree-holder on selling the property that has devolved on the legal representative would be entitled to apply for the insolvency of the legal representative. This as already observed would be manifestly unjust.

5. In the case before us, one Chitra Prasad applied for the adjudication of Kamla Bai and certain other persons as insolvents. Durinf' the pendency of the petition two other creditors named Birj Behari Lal and Buohi Mai also filed a similar petition and their petitions were consolidated with the petition of Chitra Prasad. Both the Courts below adjudicated all the persons impleaded in the application of Chitra Prasad as insolvents. Kamla Bai alone appealed in the lower Appellate Court and that Court affirmed the decision of the Insolvency Court. Kamla Bai alone has come up in revision to this Court. The other persons who were adjudicated insolvents have not assailed the decisions of the Courts below.

6. The facts that led to the application are as follows : By an award the property of a joint Hindu family was divided between certain members of the family and a portion of the property was allotted to Kamla Bai who was a widow. The award also cast liability on Kamla Bai for payment of a certain proportion of the debt due from the family. One Hardatt obtained a decree for the debt due to him from the family and in execution of that decree proceeded to sell certain properties covered by the award. It is a matter of controversy between the parties as to whether the properties sold by Hardatt in execution of his decree was or was not the property allotted to Kamla Bai, but for the purposes of the decision of this application we shall assume that the property sold was the property that was given to Kamla Bai by the award. Nevertheless the fact remains that the property was sold in enforcement of a decree which did not cast any personal liability on Kamla Bai. It was a decree which Kamla Bai in her capacity as the legal representative of the original debtors was bound to pay. The decretal amount could therefore be realized only from the properties that had come to Kamla Bai by the award, and the decree could not be enforced by attachment and sale of the properties belonging to Kamla Bai in her own right. The decree of Hardatt was therefore not a decree of the nature contemplated by Clause (e) of Section 6, Insolvency Act, and the sale of the property in execution of that decree could not amount to the commission of an act of insolvency by Kamla Bai. We may state that no other act of insolvency was alleged by either of the three petitioners to have been committed by Kamla Bai. In the view that we take we must hold that no act of insolvency was committed by Kamla Bai within the meaning of Section 6, Insolvency Act. It follows that the decisions of the Courts below are erroneous and must be reversed.

7. We are alive to the fact that the matter has come before us not by means of an appeal but by an application in revision, but we note that in exercising our revisional jurisdiction under the Insolvency Act we have got wider powers than the powers vested in this Court by Section 115, Civil P.C. It is provided in Section 75 of the Act that

The High Court, for the purpose of satisfying itself char, an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it thinks fit.

8. It is apparent that in considering the matter before us all that we have to decide is whether or not the order sought to be revised is in accordance with law. We have given our reasons for holding that the decision of the Court below is contrary to law. We accordingly allow this application and set aside the order of the insolvency Court adjudicating Kamla Bai as an insolvent. The order of that Court as regards the other persons who were arrayed as opposite parties by Chitra Prasad will stand. Kamla Bai is entitled to her costs of this application.


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