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Nazar Khan Kabuli Vs. J.J.S. Barrclough and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal807
AppellantNazar Khan Kabuli
RespondentJ.J.S. Barrclough and ors.
Excerpt:
- .....court. in our judgment, the order rejecting the application of the appellant for inclusion of his name as a creditor was not properly made, in view of the admitted position that his name was not included in the list of creditors, and seeing that no opportunity was given to the appellant to explain the delay in making the application out of which this appeal has arisen. the provisions contained in section 33 (3), provincial insolvency act, entitled a creditor at any time before discharge, to tender proof of his debt and apply to the court for an order directing his name to be entered in the schedule. as at present advised, we are inclined to hold that the discharge mentioned in section 33 (3), of the act is the final discharge, and not a conditional order of discharge, as made in the.....
Judgment:

1. This appeal has arisen out of an application made in an insolvency case by a person claiming to be a creditor and praying for inclusion of his name as such in the schedule of creditors. The application was made on 16th June 1934, before the learned District Judge, Midnapur, after a conditional discharge had been granted to the insolvent by the Court, on 26th May 1934. The application was rejected on 14th July 1934, on the ground that no sufficient and reasonable cause for the delay in making the application was made out. The order of 14th July 1934, mentioned above, was passed after hearing the objections raised by the creditors who had appeared in the proceeding before the Court. In our judgment, the order rejecting the application of the appellant for inclusion of his name as a creditor was not properly made, in view of the admitted position that his name was not included in the list of creditors, and seeing that no opportunity was given to the appellant to explain the delay in making the application out of which this appeal has arisen. The provisions contained in Section 33 (3), Provincial Insolvency Act, entitled a creditor at any time before discharge, to tender proof of his debt and apply to the Court for an order directing his name to be entered in the schedule. As at present advised, we are inclined to hold that the discharge mentioned in Section 33 (3), of the Act is the final discharge, and not a conditional order of discharge, as made in the case before us; a creditor being entitled under the law to prove his debt at any time so long as there were assets available for distribution, so as not to disturb the distribution of any dividend already declared. In the above view of the case before us, the appeal is allowed. The order of the Court below against which it is directed is set aside, and the case is remitted to the Court below for decision in accordance with law, after giving the appellant opportunity for proving his debt. There is no order as to costs in the appeal, as the respondents have not entered appearance.


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