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Ramesh Chandra Sil and anr. Vs. Charu Chandra Mohuri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal590,129Ind.Cas.622
AppellantRamesh Chandra Sil and anr.
RespondentCharu Chandra Mohuri and ors.
Cases Referred and Ramathai Anni v. Kanniappa Mudaliar A.I.R.
Excerpt:
- .....no order for adjudication was made, but hargobinda died in the meantime. upon that all that the learned judge did was not to make an order for substitution of the heirs of hargobinda in his place, but to hold that the proceedings should be continued in their presence in so far as it was necessary for the realization and distribution of the property of the debtor. it has been contended before us that section 17, prov. insol. act, under which the aforesaid order was passed by the learned judge, would not warrant the making of such an order until and unless an order of adjudication was passed. this contention was considered in two recent decisions of the madras high court, namely venkatarama aiyar v. the official receiver, tinnevelly : air1928mad476 and ramathai anni v. kanniappa.....
Judgment:

1. This appeal has been preferred from an order passed by the District Judge of Chittagong on 14th February 1928 by which he ordered the heirs of one Hargobinda Sil against whom a petition had been presented for declaring him an insolvent to be brought on the record as necessary parties for the limited purpose of being present for the realization and distribution of the property of the debtor. The respondents urged that no appeal is maintainable from this order because the order in its nature is an interlocutory one and should not be regarded as one from which an appeal is allowed under the law. Now, in deciding the question as to whether an appeal should or should not be held maintainable even though the leave of the Court has been obtained under Section 75, Sub-section (3), Prov. Insol. Act, the provisions of the Civil Procedure Code may well be looked into as a guide for the determination of the question. That has been held in the case of Munnu Lalv. Kunj Bihari Lal A.I.R 1922 Ail 206. As however leave has been obtained and the matter is not so vary clear we have gone into the merits of the case and we are lof opinion that, even if an appeal lay under the law and the present appeal was maintainable, on the merits the appeal must fail. On the presentation of the application against Hargobinda Sil an interim receiver was appointed. No order for adjudication was made, but Hargobinda died in the meantime. Upon that all that the learned Judge did was not to make an order for substitution of the heirs of Hargobinda In his place, but to hold that the proceedings should be continued in their presence in so far as it was necessary for the realization and distribution of the property of the debtor. It has been contended before us that Section 17, Prov. Insol. Act, under which the aforesaid order was passed by the learned Judge, would not warrant the making of such an order until and unless an order of adjudication was passed. This contention was considered in two recent decisions of the Madras High Court, namely Venkatarama Aiyar v. The Official Receiver, Tinnevelly : AIR1928Mad476 and Ramathai Anni v. Kanniappa Mudaliar A.I.R. 1928 Mad. 480. In these cases it has been held that under Section 17, Prov. Insol. Act, an application by a debtor or a creditor for adjudicating himself as an insolvent filed while he was alive can be continued and adjudication made even after his death. We are of opinion that the reasons given by the learned Judges of the Madras High Court in these two decisions are sound, and following them we hold that it was well within the competency of the learned Judge to make the order as he did. Indeed it seems to us that when the proceedings were to be continued and it was not necessary that they should be dropped, it is only right that they should go on in the presence of the heirs of Hargobinda Sil in so far as such presence was necessary for the continuance of the proceedings for the purpose of realization and distribution of the property of the debtor.

2. We are of opinion that on the merits the appeal, even if maintainable, fails, an we accordingly dismiss it with costs, hearing fee being assessed at one gold mohur.


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