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Digendra Chandra Basak Vs. Ramani Mohan Goswami - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in48Ind.Cas.333
AppellantDigendra Chandra Basak
RespondentRamani Mohan Goswami
Cases ReferredIyappa Nainar v. Manikha Asari
Excerpt:
provincial insolvency act (iii of 1907), sections 3, proviso, 43(2), 46 - subordinate judge declining to take action under section 43--appeal, whether lies--'court' in section 43, meaning of. - teunon, j.1. this is an appeal against an order made or purporting to be made by the district judge of dacca in the exercise of insolvency jurisdiction. by this order under section 43 (2) of the provincial insolvency act, he sentences the appellant to three months' simple imprisonment on the ground that he had fraudulently concealed certain articles of property. it appears that on the 11th november 1914 the appellant applied to the court of the 1st subordinate judge of dacca, invested with jurisdiction in certain classes of cases under the proviso to section 3 of the act, to be adjudged an insolvent. on the 1st may 1915, notwithstanding the opposition of 5 of the 7 creditors mentioned in the schedule to the application, an order of adjudication was made and a receiver appointed for the.....
Judgment:

Teunon, J.

1. This is an appeal against an order made or purporting to be made by the District Judge of Dacca in the exercise of insolvency jurisdiction. By this order under Section 43 (2) of the Provincial Insolvency Act, he sentences the appellant to three months' simple imprisonment on the ground that he had fraudulently concealed certain articles of property. It appears that on the 11th November 1914 the appellant applied to the Court of the 1st Subordinate Judge of Dacca, invested with jurisdiction in certain classes of cases under the proviso to Section 3 of the Act, to be adjudged an insolvent. On the 1st May 1915, notwithstanding the opposition of 5 of the 7 creditors mentioned in the schedule to the application, an order of adjudication was made and a Receiver appointed for the properties of the insolvent.

2. Thereafter the Receiver enquired into certain allegations made by the creditors to the effect that the insolvent had concealed his yautuk properties, that is, the gifts made to him on the occasion of his marriage, and reported against the insolvent on the 1st July 1916. The Subordinate. Judge, after hearing the creditors and the insolvent, came to the conclusion that the articles had been disposed of before the insolvency, declined to annul the order of adjudication and rejected the petitions of the opposing creditors in which, inter alia, they had prayed that the insolvent should be punished under Section 43 (2).

3. Three of the creditors thereupon appealed to the District Judge, who directed the insolvent to show cause why he should not be committed to the Criminal Court under Section 48 (2), and after taking evidence on both sides on the 23rd March 1917 made the order against which the present appeal has been preferred,

4. The contentions advanced before us are (1) that against the order of the Subordinate Judge declining to deal with the insolvent under Section 43 (2) (b) no appeal lay to the District Judge, (2) that the proceedings before the District Judge were vitiated by certain irregularities and (3) that on the merits no sentence of imprisonment should have been imposed.

5. The first contention is based on the decision reported as Iyappa Nainar v. Manikka Asari 27 Ind. Cas. 241 : 40 M. 630, wherein it has been held that a creditor is not a person aggrieved by the refusal of the Court to sentence the insolvent under Section 43 (2).

6. But the learned District Judge proceeds on the ground that inasmuch as under the proviso to Section 3 his Court and the Subordinate Judge's Court have concurrent jurisdiction, the proceedings having been removed to his Court, his order under Section 43 (2) was to be regarded as an original order. Here, in my opinion, he has fallen into error. No doubt the two Courts have concurrent jurisdiction, with the result that either Court has jurisdiction to entertain such applications, and the proceedings might be withdrawn or transferred by the District Court under the provisions of the Code of Civil Procedure from the one to the other. But orders made by the Sub. ordinate Judge, while he had season of the case, could be interfered with by the District Court only under the provisions of Section 46, which in the matters therein dealt with subordinates all other Courts to the District Court, or under the powers conferred by the Code of Civil Procedure in regard to civil suits as provided in Section 47.

7. Though with some hesitation, I agree with the Madras High Court in holding that against the order of the Subordinate Judge declining to take action against the insolvent under Section 43 (2) no appeal lay to the District Court.

8. The irregularities alleged are that the notice served upon the insolvent contemplated his punishment, if at all, not in the proceedings then taken by the District Court but in subsequent proceedings, that the District Court framed no formal charge, and that in the proceedings the insolvent was examined and cross-examined. With regard to the first of these contentions it is sufficient to say that any misapprehension on the part of the insolvent was removed in the course of the proceedings before the District Court. With regard to the remaining two I may point out that in the Provincial Insolvency Act there is no provision corresponding with Section 104 (3). of the Presidency Towns Insolvency Act and that decisions under that Act, therefore, are of little assistance. On the contrary Section 47 applies to all proceedings under the Provincial Insolvency Act the procedure in civil suits. In view, however, of the decision on the first question I need not come to any definite decision on these two questions.

9. On the merits we need not point out that when the insolvent made his application he had but recently attained his majority. It would seem, therefore, that the debts were incurred before or soon after he became of age. The father is no doubt well-to-do, bat no obligation rests upon a father to reimburse those who recklessly give credit to profligate young men, the more especially when in this case, some months before, the father had circulated notices warning his townsmen that he would not be responsible for debts contracted by his son.

10. On the merits, therefore, we think the sentence should be set aside.

11. This appeal is accordingly decreed.

Newbould, J.

12. I am unable to agree with my learned brother that the order passed by the District Judge, under Section 43 (2) of the Provincial Insolvency Act, was an appellate and not an original order. In the petition of appeal to this Court the first ground is that the District Judge had no jurisdiction to start proceedings. It also appears from the order-sheet of the proceedings in the Court of the Subordinate Judge that that officer did not contemplate exercising penal jurisdiction but directed an enquiry by the Receiver as to property alleged to have been concealed, under the erroneous idea that such concealment would be a ground for annulling the order of adjudication. This is evident from the orders of the 15th September 1915 and 22nd July 1916 In this view of the case the decision of the Madras High Court in Iyappa Nainar v. Manikha Asari 27 Ind. Cas. 241 : 40 M. 630 has no application.

13. I can see no grounds for accepting the second contention of the appellants that the word 'Court' in Section 43 of the Act means the Court of original jurisdiction.

14. I am in entire agreement with my learned brother that on the merits the sentence should be set aside and would decree the appeal on this ground.


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