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Mumtaz HosseIn Vs. Brij Mohun Thakoor and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal888
AppellantMumtaz Hossein
RespondentBrij Mohun Thakoor and ors.
Excerpt:
insolvency - code of civil procedure (act x of 1877), sections 344, 345, 350 and 588(n)--onus probandi--appeal. - .....to the court he was bound to give every assistance to his creditors to recover their dues out of the property to which he was, or believed himself to be, entitled. it is clear that instead of doing so, he absented himself at a critical time when his creditors were doing their best to establish his right to the property.2. we were asked at first to refuse the hearing of this appeal, on the ground that no appeal lay under section 588, clause (n), inasmuch as the judge has not, admitted the appellant to the position of an insolvent. it appears to us that the term 'insolvency matter' is purposely wide, so as to include any question arising out of the exercise of the functions entrusted to the courts under the section specified. we have therefore heard the appeal, and having heard it, we.....
Judgment:

Jackson, J.

1. The appellant has not convinced us that the facts of the case are such as that the Court should have, under Section 351, declared him an insolvent. In the first place, I may remark that the Judge has placed him in a position somewhat more advantageous than he was entitled to, by holding that the burden of proving the matters set out in that section did not lie on him. We think it does lie upon the applicant to satisfy the Court as to the various matters there described, and it is quite reasonable that he should do so, because the facts are peculiarly and chiefly within the applicant's own knowledge; and the meaning of the section no doubt is that upon his examination before the Court he should leave on the mind of the Court an impression that he is not under any of those heads undeserving of the protection which he asks for. Now it appears to us that the circumstances stated by the Judge do amount to a very strong case of suspicion, and more upon this head, that he had committed an act of bad faith regarding the matter of the application (cl. [d] of the section). It is obvious that before he came to the Court he was bound to give every assistance to his creditors to recover their dues out of the property to which he was, or believed himself to be, entitled. It is clear that instead of doing so, he absented himself at a critical time when his creditors were doing their best to establish his right to the property.

2. We were asked at first to refuse the hearing of this appeal, on the ground that no appeal lay under Section 588, Clause (n), inasmuch as the Judge has not, admitted the appellant to the position of an insolvent. It appears to us that the term 'insolvency matter' is purposely wide, so as to include any question arising out of the exercise of the functions entrusted to the Courts under the section specified. We have therefore heard the appeal, and having heard it, we think it should be dismissed on the merits.


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