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Sheikh Abdul Aziz Vs. Habid Mistri and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.229
AppellantSheikh Abdul Aziz
RespondentHabid Mistri and ors.
Excerpt:
civil procedure code (act v of 1908), order ix, rules 2, 4 - application for restoration of application for adjudication in insolvency dismissed under order ix, rule 2--fresh application, whether lies--provincial insolvency act of iii of 1907)--insolvency application, dismissal of. - .....himself, of the second alternative mentioned in that rule, he is precluded from instituting a fresh application. the rule, however, does not say so, and if that were the intention, we might have found in it a provision similar to that in order ix, rule 9, which states that where a suit is dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. no other legal ground has been shown to us which existed in bad of the plaintiff's application for insolvency; and it is to be noted that the dismissal of the application on the 2nd november 1914 was on a ground which did not affect the merits. the application has never been determined upon the merits, and unless there is some specific provision prohibiting the present.....
Judgment:

1. This appeal must be decreed. It has been held by the learned Judge upon a reading of Order IX, Rule 4 of the Code of Civil Procedure, made applicable to insolvency proceedings, that if an applicant avails himself, of the second alternative mentioned in that rule, he is precluded from instituting a fresh application. The rule, however, does not say so, and if that were the intention, we might have found in it a provision similar to that in Order IX, Rule 9, which states that where a suit is dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. No other legal ground has been shown to us which existed in bad of the plaintiff's application for insolvency; and it is to be noted that the dismissal of the application on the 2nd November 1914 was on a ground which did not affect the merits. The application has never been determined upon the merits, and unless there is some specific provision prohibiting the present application (and we hold there is none), that application should lie and should be entertained.

2. The appeal, therefore, must be decreed with costs, the hearing fee being assessed at one gold mohur. We direct that the appellant's application to be declared an insolvent be heard and adjudged on the merits.

3. Let the record be sent down to the lower Court without delay.


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