1. The facts of the case out of which this appeal has arisen are these: An application was made on the 14th June, 1921,byafirm of the name of Baisnab Charan, Radha Charan Shaha and other creditors to have certain persons declared insolvent. The adjudication order was duly made on the 4th of January, 1922, and the Schedule as required under Section 33 of the Provincial Insolvency Act was prepared on the 27th July, 1922. A Receiver of the estate was appointed. On the 30th January, 1923, Gokul Chandra Ray one of the creditors whose name was already entered in the Schedule in respect of certain debt due to him applied to the Court and stated that by mistake certain other debts had not been proved by him and asked that he should be allowed to prove those debts also. The learned District Judge refused this application. He was of opinion that once a creditor has proved a debt and his name, has been entered in the Schedule it is not open to him to prove any other debt. Whether this decision is or is not correct depends entirely upon the wording of Clause (3) of Section 33 of the Provincial Insolvency Act. The 1st clause of Section 33 provides that ' When an order of adjudication has been made under this Act, all persons alleging themselves to be creditors of the insolvent in respect of debts provable under this Act shall tender proof of their respective debts by producing evidence of the amount and particulars thereof, and the Court shall, by order, determine the persons who have proved themselves to be creditors of the insolvent in respect of such debts, and the amount of such debts, respectively, and shall frame a Schedule of such persons and debts.' Then Clause (3) of the same section provides that 'Any creditor of the insolvent may, at any time before the discharge of the insolvent, tender proof of his debt and apply to the Court for an order directing his name to be entered in the Schedule as a creditor in respect of any debt provable under this Act, and not entered in the Schedule, and the Court, after causing notice to be served en the insolvent and the other creditors who have proved their debts, and hearing their objections (if any) shall comply with or reject the application.' As I have already stated the learned District Judge interprets this Clause (3) to mean that only a creditor whose name is not already entered in the Schedule can prove a debt under Clause (3). I do not see any reason for placing this restriction on the words of Section 33, Clause (3). The words used are 'any creditor.' and it seems to me that if the Legislature intended that this clause should only apply to a creditor whose name was not already in the Schedule it would have said ' any un-scheduled creditor.' The words of the section are sufficiently wide to include a person who has already proved one or more debts but wishes to prove a further debt which for some reason or other he has omitted. In this view of the case the learned Judge was wrong in not allowing the applicant to prove his alleged debt which had not been already entered in the Schedule. The order of the District Judge is set aside and the case remanded to him to be dealt with in the light of the observations made above I would make it clear that we do not decide whether any particular debt is or is not provable as that is decided by the judgment in that the learned Judge was not correct in holding that a creditor who had once proved a debt and had been entered in the Schedule could not prove any further debts and there applications are to be dealt with by him on their merits.
2. I may here note that in the concluding portion of his judgment the learned Judge states that 'in this view of the case it becomes unnecessary to decide the other points.' But he went on to state that his findings on these points were against the petitioner. It does not appear, however, that the learned District Judge has properly considered these points. Therefore, the whole case will be open to him for consideration.
3. A preliminary point was raised that the appeal was not competent, because one Baisnab Charan Shaha who was an alleged creditor is dead and no notice has teen served on his heir. It does not, however, appear, that Baisnab Charan Shaha was really a creditor in his personal capacity. The real creditor was the firm of Baisnab Charan-Radha Charan Shaha and further even if he were a creditor and no notice had been given to his heir that would not by itself render the proceeding incompetent. No doubt it may be open to the heirs, if so advised, to apply to have the proceeding reopened on the ground that they had no notice. But their absence and the fact that they had no notice in the present proceeding cannot prevent the present appeal from being proceeded with and decided. I may further note that notice was duly served on the firm of Baisnab Charan and Radha Oharan Shaha.
4. The appellant is entitled to the costs of this appeal from the Receiver and the contesting creditors represented by Mr. Chakrabarti that is the respondents Nos. 2, 4, 5, 6, 7, 11, 12 and 13. Hearing-fee five gold mohurs.
5. I agree.