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Lachmi NaraIn Dube Vs. Kishun Lall and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All308; 46Ind.Cas.733
AppellantLachmi NaraIn Dube
RespondentKishun Lall and anr.
Excerpt:
provincial insolvency act (iii of 1907), sections 6(3) 15 and 16(1) - application for adjudication by debtor--preliminary inquiry--court, duty of. - .....jurisdiction in the district of mirzapur to be adjudicated an insolvent. the application was opposed by a creditor; the court had examined the applicant and had taken certain evidence offered by the objecting creditor. the hearing was then adjourned for reasons which need not be discussed, and it continued to be adjourned over a number of successive dates fixed for the hearing. finally on the 31st october 1917 the case being called on, it was found that the applicant did not appear. the court thereupon passed the following order:applicant is absent. the application is dismissed for want of prosecution.2. it seems to us that this order is not justified either by the circumstances of the case or by the provisions of the provincial insolvency act, iii of 1907. the debtor's petition.....
Judgment:

1. This is an appeal by one Lachmi Narain Dube, who had applied to the Court of the Subordinate Judge exercising jurisdiction in the district of Mirzapur to be adjudicated an insolvent. The application was opposed by a creditor; the Court had examined the applicant and had taken certain evidence offered by the objecting creditor. The hearing was then adjourned for reasons which need not be discussed, and it continued to be adjourned over a number of successive dates fixed for the hearing. Finally on the 31st October 1917 the case being called on, it was found that the applicant did not appear. The Court thereupon passed the following order:

Applicant is absent. The application is dismissed for want of prosecution.

2. It seems to us that this order is not justified either by the circumstances of the case or by the provisions of the Provincial Insolvency Act, III of 1907. The debtor's petition had alleged facts sufficient, if established, to entitle him to present his petition under Section 6, Clause (3) of the said Act. After completing the necessary enquiries the duty laid upon the Court was to come to a decision in respect of the various matters spoken of in Section 15 of the said Act and then either to dismiss the petition under the provisions of that section, or else to make an order of adjudication. On this point the words of Section 15(1) of the Act are clear and mandatory. We, therefore, allow this appeal and set aside the order of the Court below, We return the record to that Court with orders to re-admit it on to its file of pending applications and to dispose of it according to law. The appeal is not opposed and there is no necessity for us to make any order as to costs.


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