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Jewraj Khari-wallah Vs. Kanai Lal Phoplia - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in96Ind.Cas.131
AppellantJewraj Khari-wallah
RespondentKanai Lal Phoplia
Excerpt:
provincial insolvency act (v of 1920), section 5 - petition for insolvency--protection order, ad interim, whether can be passed. - .....by my learned brothers mr. justice b. b. ghose and mr. justice panton against an order of the learned district judge of alipur refusing to grant ad interim protection to the petitioner pending his adjudication as an insolvent. it would appear that the petitioner applied to the district judge to b declared an insolvent and asked the district judge that pending the decision of his application to be adjudicated an insolvent, he should be protected against arrest at the instance of his creditors nos. 1, 2 and 3. the learned district judge rejected that application on the ground that the provincial insolvency act made no provisions for such ad interim protection, nor was there any law under which an ad interim protection could be granted.2. this rule must obviously be discharged, for the.....
Judgment:

Cuming, J.

1. This is a Rule issued by my learned brothers Mr. Justice B. B. Ghose and Mr. Justice Panton against an order of the learned District Judge of Alipur refusing to grant ad interim protection to the petitioner pending his adjudication as an insolvent. It would appear that the Petitioner applied to the District Judge to b declared an insolvent and asked the District Judge that pending the decision of his application to be adjudicated an insolvent, he should be protected against arrest at the instance of his creditors Nos. 1, 2 and 3. The learned District Judge rejected that application on the ground that the Provincial Insolvency Act made no provisions for such ad interim protection, nor was there any law under which an ad interim protection could be granted.

2. This Rule must obviously be discharged, for the learned District Judge is clearly quite right in the view he has taken. The learned Vakil who has appeared for the petitioner has been unable to point out to us any section of the Provincial Insolvency Act under which this ad interim protection could be granted to the petitioner. The learned Vakil has drawn our attention to Section 5 of the Act. He seems to argue, if I understand him rightly, that Section 5 gives the Court power to grant a petitioner ad interim protection. He has not been able to satisfy me how Section 5 does grant the Court power to grant ad interim protection. He would seem to argue that possibly the Court had in its inherent powers, the power to grant ad interim protection. Without discussing whether or not a Court has in its inherent powers, the power to grant ad interim protection, it is quite clear that the Provincial Insolvency Act has specifically laid down that in such a case as the present one, protection cannot be granted. As the order of the learned District Judge is perfectly legal and right and he was quite correct in holding that he has no power under the law to grant ad interim protection, no case arises for our revision under Section 115, C.P.C.

3. The Rule must, therefore, be discharged with costs. Hearing-fee, two gold mohurs.

Page, J.

4. I agree that the Rule should be discharged. There is no provision in the Provincial Insolvency Act in respect of orders to prevent the arrest of, a debtor pending the hearing of a petition for insolvency, liven if the Court has jurisdiction to make an order of this description in the exercise of its inherent powers, having regard to the express provisions with relation to. protection orders and release from arrest set out in the Provincial Insolvency Act, (as to which I desire to reserve my opinion), the fact that the lower Court has not passed an 'ad interim protection order' in exercise of its inherent powers, in my opinion, does not bring the order in question within the ambit of Section 115, C.P.C.


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