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Pirthi Raj Vs. Vishnu Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All340
AppellantPirthi Raj
RespondentVishnu Das
Excerpt:
- - , the debt owed by the present applicant to the present opposite party, is one that was provable under the act within the meaning of sub-section 2, section 34, and the effect of the order of discharge is to release the insolvent from all such debts with the exceptions named in clauses (a-d), sub-section (1), section 44. not one of those exceptions applies to a case like the present......had been discharged on 18th january 1930. the opposite party, who was apparently un-aware of the insolvency proceedings, had obtained a decree against him in 1929, and this he proceeded to put into execution after the insolvent's discharge. the applicant made an objection that his discharge released him from all debts provable under the provincial insolvency act, 1920. in dismissing the objection the learned munsif appears to have been guided rather by what he considered to be general questions of equity than by the provisions of the act. he remarks in his order that the decree-holderwas kept ignorant of the insolvency proceedings and was not able to avail of the distribution of assets. and he held that the effect of the order of discharge was to free the judgment-debtor (i.e., the.....
Judgment:
ORDER

Kendall, J.

1. This is an application for the revision of an order passed by the Munsif of Muttra in execution proceedings dismissing an objection which was made by the applicant under Section 47, Civil P.C. The applicant had been declared insolvent but had been discharged on 18th January 1930. The opposite party, who was apparently un-aware of the insolvency proceedings, had obtained a decree against him in 1929, and this he proceeded to put into execution after the insolvent's discharge. The applicant made an objection that his discharge released him from all debts provable under the Provincial Insolvency Act, 1920. In dismissing the objection the learned Munsif appears to have been guided rather by what he considered to be general questions of equity than by the provisions of the Act. He remarks in his order that the decree-holder

was kept ignorant of the insolvency proceedings and was not able to avail of the distribution of assets.

and he held that the effect of the order of discharge was to free the judgment-debtor (i.e., the present applicant) from all liabilities that stood against him on the date of discharge 'provided that there is no fraud against any creditor.' That however is not the law as laid down in Section 44 of the Act. There is no doubt that the debt concerned, i. e., the debt owed by the present applicant to the present opposite party, is one that was provable under the Act within the meaning of Sub-section 2, Section 34, and the effect of the order of discharge is to release the insolvent from all such debts with the exceptions named in Clauses (a-d), Sub-section (1), Section 44. Not one of those exceptions applies to a case like the present. Apparently the Munsif considered that Clause (b) would cover the case, but Clause (b) relates to

any debt or liability incurred by means of any fraud or fraudulent breach of; trust to which he (the insolvent) was a party.

2. The fact that the creditor was not informed of the insolvency proceedings does not prove that the debt itself was 'incurred by means of any fraud or fraudulent breach of trust' to which the insolvent was a party. Whether the insolvent did actually prevent his creditor from learning about the insolvency proceedings or not does not appear from the record, but the Act provides for notice to be given to all creditors, and creditors are expected to look after their own interests. In any case it is quite clear that Clause (b), Section 44 has no application to the pre-sent case and it is obvious on the face of it that none of the other Clauses (a-d) has any application either. The result is that the application must be and is allowed with costs. I set set aside the order of the Munsif and direct that the applicant's objection under Section 47 be allowed and that the application for execution be dismissed.


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