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iyappa Nainar Vs. Manickka Asari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1915Mad1066; (1915)ILR38Mad773
Appellantiyappa Nainar
RespondentManickka Asari
Cases ReferredRash Behari Roy v. Bhughwan Chunder Roy I.L.R.
Excerpt:
provincial insolvency act (iii of 1907), sections 43(3), 6, 46(1) and (2) - creditor's petition to enquire into commission of an offence--enquiry and refusal to frame a charge--appeal, no right of. - .....act. a preliminary objection is taken that a creditor has no right of appeal in that he is not 'a person aggrieved' by the order within the meaning of section 46(1). in a case reported in kadir baksh v. bhawani prasad i.l.r. (1892) all. 145 a judge of a small cause court refused to take action under section 359 of the code of civil procedure against an insolvent and a revision petition was entertained by the high court against the order at the instance of a creditor. this however does not assist the appellant as in revision the court acts suo motu. it has been held in the matter of rash behari roy v. bhughwan chunder roy i.l.r. (1890) cal. 2 under the insolvent acts 11 & 12 vict., cap. 21, that section 50 should be administered as the criminal law is administered and specific charges.....
Judgment:

1. This is an appeal under Section 46, Clause (2) of the Provincial Insolvency Act, from an order of the District Judge of South A root dismissing a petition put in by creditor asking the Court to take action against an insolvent under Section 43, Clause (2)(b) of the Act. A preliminary objection is taken that a creditor has no right of appeal in that he is not 'a person aggrieved' by the order within the meaning of Section 46(1). In a case reported in Kadir Baksh v. Bhawani Prasad I.L.R. (1892) All. 145 a Judge of a Small Cause Court refused to take action under Section 359 of the Code of Civil Procedure against an insolvent and a revision petition was entertained by the High Court against the order at the instance of a creditor. This however does not assist the appellant as in revision the Court acts suo motu. It has been held in the matter of Rash Behari Roy v. Bhughwan Chunder Roy I.L.R. (1890) Cal. 2 under the Insolvent Acts 11 & 12 Vict., cap. 21, that Section 50 should be administered as the Criminal law is administered and specific charges framed, and this has been the practice of this Court. What the Court has done in effect is that it has taken cognizance, enquired into an allegation of a criminal offence and refused to frame a charge. Under no principle of Criminal law is a complainant entitled to appeal against such refusal as in all criminal proceedings the Grown is in theory the prosecutor, and we see no reason why a different principle should prevail where the criminal jurisdiction is exercised by a Civil Court. Under the Bankruptcy Act, 1883, the Court has power to commit-vide Section 165. Section 164(2) gives an appeal in Bankruptcy matters 'at the instance of any person aggrieved.' Section 73 of the Indian Insolvent Act gave an appeal by way of petition to the Supreme Court from any proceeding of the Commissioner at the instance of any person 'who shall think himself aggrieved.' We have not been referred to any case under either of these Acts or earlier Bankruptcy Acts in England where a creditor has been held 'a person aggrieved' by the refusal of the Court, nor can we find any such case. The absence must be attributable to the principle above stated, and in that view the preliminary objection must be uphold and the appeal dismissed with costs.


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