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Kailas Chandra Sarkar Vs. Kantiram Das Bania - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.993
AppellantKailas Chandra Sarkar
RespondentKantiram Das Bania
Excerpt:
provincial insolvency act (iii of 1907) sections 6, 16, 46 - creditors decree against insolvent, execution of-jurisdiction - .....proceedings. this creditor obtained a decree against the insolvent. he then applied to the learned district judge for leave to execute the decree that was held by him. the district judge was of opinion that he had no jurisdiction to do so. i am not satisfied that that is right. many orders have been made under the provincial insolvency act declaring that a creditor is at liberty to execute his decree against the property alleged to be the property of the insolvent upon his undertaking to hand over to the receiver of the estate of the insolvent for the benefit of the general body of the creditors the sum so realised in execution. it seems to me that, in that view, the learned district judge would have exercised a wiser discretion in permitting this executing creditor at his own.....
Judgment:

Fletcher, J.

1. This is an appeal against an order passed by the learned District Judge of Rangpur, dated the 27th May 1915. The appeal arises out of an application made in some insolvency proceedings. The appellant before us is a creditor who appears to have proved his debt in the insolvency proceedings. This creditor obtained a decree against the insolvent. He then applied to the learned District Judge for leave to execute the decree that was held by him. The District Judge was of opinion that he had no jurisdiction to do so. I am not satisfied that that is right. Many orders have been made under the Provincial Insolvency Act declaring that a creditor is at liberty to execute his decree against the property alleged to be the property of the insolvent upon his undertaking to hand over to the Receiver of the estate of the insolvent for the benefit of the general body of the creditors the sum so realised in execution. It seems to me that, in that view, the learned District Judge would have exercised a wiser discretion in permitting this executing creditor at his own risk and at his own costs to enforce his decree against the property alleged to be the property of the insolvent that has been concealed by some benamidar or other person on behalf of the insolvent. In that view, we ought to reverse the decision of the learned District Judge and, in lieu thereof, make an order that the creditor, the appellant before us, be permitted to execute his decree against the property which he alleges is the property of the insolvent upon his undertaking to hand over to the Receiver all moneys realised in execution for the benefit of the general body of the creditors. The appellant is entitled to add his costs in this appeal to his claim. We assess the hearing-fee at one gold mohur.

Richardson, J.

2. I agree.


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