1. This is a reference under Section 69 of the Presidency Small Cause Courts Act--Act XV of 1882. It is much to be regretted that the Judges of that Court did not adhere more closely to the directions of the section in making their reference. They do not state clearly the points on which there is a difference of opinion. They practically refer the whole case to this Court saying that they are not agreed on the question, whether 'under the circumstances of the cane, the bond should be enforced against the surety, the defendant.' In my opinion this is not a proper reference, and were it not that one of the Judge of that Court has row retired. I would, speaking for myself, reference for re-submission in strict accordance shall, during the pendency of the insolvency proceedings, have any remedy against the property of the insolvent, or commence any suit or other legal proceeding except with the leave of the Court, and on such terms as the Court may impose. It is argued before us that applying for a warrant in execution proceeding is not commencing other legal proceedings within the meaning of the section, and a case reported as Emperor v. Mulshankar Harinand Bhat 7 Ind. Cas. 963: 11 Cri.L.J. 548 is relied on as an authority for that position, tfie words used by one of the learned Judges being, by 'other legal proceeding' is meant broadly other proceeding of a Civil nature connected with the insolvent's estate.' The question before the Court was, however, whether the proceedings in a Criminal Court were without jurisdiction under this section, and it is with reference to that contention that the observation is made. That case is, therefore, no authority for the position. Reliance is also placed on the difference in the language of the Provincial Insolvency Act which have any remedy against the property or the person or the insolvent or commence any suit or other legal proceeding. I do not, however, think that the difference in wording detracts from the meaning to be given to the words 'other legal proceeding'. Execution proceedings were specifically mentioned in Section 49 of the old Act and were clearly intended to cover applications for arrest, as the proviso to the section enacts that if a person was already in custody, he should not be discharged out of it otherwise; than by a protection order which could be made under Section 13. It is further argued that if Section 13 of the Act is to be held I to include proceedings by way of application for warrant of arrest in execution, there is no necessity for a protection order. The answer is that the words in Section 17 will not avail 9 to discharge an insolvent from arrest any 1 more than the words of Section 49 of the ,t old Act and that the order of the High Court is still necessary in such circumstances it and may be granted or refused by the Court as it thinks fit. I am, therefore, not prepared to cut down the broad principle on which the section is based, namely, that when once a person is adjudication insolvent, creditors seeking any remedy against him music come to the High Court on its insolvency side to get leave for that purpose. Applying this view of the law to the facts of the case, I am of opinion that after the 2nd of December, the date when the order of adjudication was made, the Court of Small Causes had no jurisdiction without the leave of the High Court to entertain any application in execution against the insolvent: and that leave admittedly not having been procured, taking of security in execution proceedings was ultra vires of the Court. The matter being one of jurisdiction, it is immaterial whether the insolvent claimed the benetit of the section or not, though as a matter of fact, it is clear that the Court was aware of the adjudication. In this view, it becomes unnecessary to consider any other question, and I would answer the reference by the learned Judges as indicated above. I would add that it is not at all clear to me under what provision of the Small Cause Courts Act, this bond was taken. Section 55(4) of the Civil Procedure Code provides that where a judgment-debtor who has been arrested, expresses his intention to apply to be declared an insolvent, he can be released on furnishing security; but the High Court in making rules for the Presidency Small Cause Courts under Section 9 of that Act has not embodied this provision in the rules and I have great doubt whether either Section 30 of the latter Act or Order XXI, Rule 27, empowers the Court to take a bond of this nature.
Sadasiva Aiyar, J.
2. I agree that the first question should be answered in the negative that decree-debt of the plaintiff against the insolvent was 'provable' in the insolvency. Hence Section 17 of Act Hi of 1909 took away the jurisdiction of the Small Cause Court to pass any orders in execution without the leave of the High Court after the judgment-debtor had been adjudicated an insolvent. The bond sued on was, therefore, obtained without jurisdiction and is void. I do not answer the other questions as the answer to the first question is sufficient for the decision of the suit.