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Kanhaya Lall Bhaia Gyawal Vs. Poona Lall - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal730
AppellantKanhaya Lall Bhaia Gyawal
RespondentPoona Lall
Excerpt:
insolvency - civil procedure code (act xiv of 1882), chapter xx--discharge of insolvent--future earnings of insolvent, power of court to compel payments out of, towards liquidation of debts. - .....has boon taken by another bench of this court, and we need not say any more as to that. but the district judge has discharged the insolvent, and has discharged him after his having filed a schedule in which the debt of the present creditor was set out; that is to say, he has absolutely obliterated the debt due under the decree. now we have asked the respondent's vakeel for any ground, if he had any, for contending that it was the imperative duty of the court under the circumstances to grant that discharge. he was unable to point out to us anything statutory or generally for so contending. we think that the issue of an order of discharge must, in its nature, having regard to the character of insolvency jurisdiction, be to a certain extent discretionary, and if the court be of opinion.....
Judgment:

Pigot and Gordon, JJ.

1. We think the appeal must be allowed and the order set aside. The jurisdiction under the insolvency sections of the Civil Procedure Code is no doubt one most difficult to administer satisfactorily, but it still is competent for the Court so to exercise its powers as to secure to the creditors a better chance of recovering something from the insolvent-debtor than we think has been, under the circumstances of this case, allowed. We are dissatisfied with the course taken by the Lower Court in two respects. We do not think that sufficiently active means of searching into the insolvent's affairs was afforded by the Court to the appellant, who for some mysterious reason is called the objector, and we think that both in respect of the rules, an order for the production of which he asked for, and as to the issue of summons to examine witnesses, and summons to examine the books relating to the religious business carried on by the insolvent and his family, the Court ought to have, in the interest of the creditor, furthered, in place of refusing, the application made by the appellant, although it may be, perhaps, that the evidence and the documents which the appellant sought to lay before the Court might not, when laid before it, add much to the Court's knowledge of the insolvent's position and means, still this source of information ought, we think, to have been searched out and used to its full extent. Further, it does appear that the religious business, a term which for want of a better name we apply to the insolvent's occupation and that of his family, undoubtedly does bring in a very considerable income, although it may well be that that income is not of a nature such that it can be the subject-matter of attachment, or seizure, or the like under the Code. That, we are told, is the view which has boon taken by another Bench of this Court, and we need not say any more as to that. But the District Judge has discharged the insolvent, and has discharged him after his having filed a schedule in which the debt of the present creditor was set out; that is to say, he has absolutely obliterated the debt due under the decree. Now we have asked the respondent's vakeel for any ground, if he had any, for contending that it was the imperative duty of the Court under the circumstances to grant that discharge. He was unable to point out to us anything statutory or generally for so contending. We think that the issue of an order of discharge must, in its nature, having regard to the character of insolvency jurisdiction, be to a certain extent discretionary, and if the Court be of opinion that the insolvent may reasonably be expected to possess an income accruing during the time of his insolvency and likely to continue, even be it an income from sources such that it could not be attached, still the Court ought very seriously to consider whether under such circumstances it ought to exercise its power to discharge the insolvent, and not rather stay its hands and require the insolvent, as a condition of such discharge, to satisfy it, by payments on account of the debt, that he really desires, so far as he can, honestly to discharge the debts that he owes. It may be shocking to the idea of some insolvents that they should be under obligation to pay debts which they have any chance of getting out of; that is very true, but the function of the Court is to compel them, to do so, if it can, either by its compulsory process, or, where that cannot be used, by withholding from them, where it has the power of doing so, the relief to which they might otherwise be considered entitled. We think the Court ought to have taken these views into consideration in the present case, even supposing that the enquiry into the insolvent's estate, which we think ought to have been made and which we now direct should be made, were to have resulted in the discovery of nothing strictly speaking, attachable or seizable on behalf of his creditors. We set aside the order of discharge and direct that, upon the appellant supplying the necessary funds, notice be issued in the Gazette notifying the setting aside of the order of the District Judge and the concealment of the order of discharge. We direct that an inquiry into the insolvent's means do proceed, the appellant having such opportunity as we have shown by this judgment that we think he ought to have had, and after such inquiry the District Judge will make such order in the matter of the insolvency as, having regard to the views expressed in our judgment, would be proper for him to make.

2. The appellant will be entitled to recover the amount of the costs of this appeal against any estate, if any, as shall be discovered, can be realized in the insolvency.


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