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Panda Jagannath Vs. Ganga Dutt Dube - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All344; 50Ind.Cas.192
AppellantPanda Jagannath
RespondentGanga Dutt Dube
Cases ReferredTirloki Nath v. Badri Das
Excerpt:
provincial insolvency act (iii of 1907), sections 15, 16, 43 -petition for adjudication, dismissal of--petitioner guilty of misappropriation--procedure. - - very little weight can be attached to the fast that no second appeal was filed, because in all probability the appeal would at once have failed upon the ground that it was a finding of fact behind which the high court cannot go in second appeal.1. this appeal arises out of insolvency proceedings. panda jagannath, thr appellant here, presented a petition to be declared an insolvent. ha had been arrested in execution of a decree obtained by ganga datt dabe. it is quite clear that on the admitted facts panda jagannath was entitled to have an order declaring him an insolvent. it appears that a civil suit had been brought against panda jagannath by ganga datt dabe, in which in was alleged by the latter that panda jagannath had misappropriated, certain diamonds which had been delivered to him for sale on commission. the first court had dismissed the suit. on appeal, however, the decree of the court of first instance was set aside and a decree for rs. 800 and odd was made against panda jagannath. the learned district judge, in.....
Judgment:

1. This appeal arises out of insolvency proceedings. Panda Jagannath, thr appellant here, presented a petition to be declared an insolvent. Ha had been arrested in execution of a decree obtained by Ganga Datt Dabe. It is quite clear that on the admitted facts Panda Jagannath was entitled to have an order declaring him an insolvent. It appears that a civil suit had been brought against Panda Jagannath by Ganga Datt Dabe, in which in was alleged by the latter that Panda Jagannath had misappropriated, certain diamonds which had been delivered to him for sale on commission. The first Court had dismissed the suit. On appeal, however, the decree of the Court of first instance was set aside and a decree for Rs. 800 and odd was made against Panda Jagannath. The learned District Judge, in dismissing the petition of Jagannath to be declared an insolvent, seems to have considered that the decree against him at the instance of Ganga Dutt Dube must be taken as an adjudication that the diamonds had been criminally misappropriated by Panda Jagannath, particularly having regard to the fact that Panda Jagannath did not file a second appeal. This, we think, was quite wrung. Very little weight can be attached to the fast that no second appeal was filed, because in all probability the appeal would at once have failed upon the ground that it was a finding of fact behind which the High Court cannot go in second appeal. In any event if there was any just reason for thinking that Panda Jagannath had committed an offence punishable under the Insolvency Act, the proper course for the Court would have been to have proceeded under Section 43, after having first made a declaration of insolvency and after also having framed a charge in analogy to the provisions of the Code of Criminal Procedure see Chhatrapat Singh Dugar v. Kharag Singh Lachmiram 39 Ind. Cas. 788 : 15 A.L.J. 87 : 21 M.L.T. 36 : (1917) M.W.N. 100 : 32 M.L.J. 1 : 19 Bom. L.R. 174 : 25 C.L.J. 215 : 21 C.W.N. 497 : 10 Bur. L.T. 25 : 44 C. 535 : 44 I.A. 11 (P.C.) and also Tirloki Nath v. Badri Das 23 Ind. Cas. 4 : 36 A. 250 : 12 A.L.J. 355. We think that the order dismissing the application of Panda Jagannath was wrong. We allow the appeal, set aside the order of the Court below and adjudicate Panda Jagannath an insolvent. The case will now be sent back to the Court below to proceed with the insolvency matter in due course of law. The appellant will have his costs in this Court, including fees on the higher scale.


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