KOTWALESHWAR PRASAD Vs. ABDUL SHAKOOR

JUDGEMENT

(1.) This is an application in revision, under Section 75, Provincial Insolvency Act (v [5] of 1920). The facts which have given rise to the application are these: On the application of certain creditors Kotwaleshwar Prasad, the applicant, was adjudged an insolvent by the Insolvency Judge of Kanpur. On 18-1-1939 the opposite-party, Abdul Shakoor, Abdul Rashid and Abdul Waheed, filed an affidavit affirming that the insolvent had executed certain pronotes in their favour; and they prayed that the debts due thereunder be entered in the schedule of debts. The insolvent filed a counter-affidavit, on 21-1-1939, asserting that the debts were fictitious. On 8-11-1940, the Official Receiver of Kanpur, on the basis of the affidavit and the counter-affidavit filed before him, accepted the debts and made an order that they may be entered in the schedule. Against the order of the Official Receiver the insolvent preferred an appeal to the Insolvency Judge, who, on 14-12-1942, made an order directing the Official Receiver to hold an enquiry and find out whether the debts were genuine or otherwise. The order of the Insolvency Judge was challenged in an appeal, filed by the opposite party in the Court of the District Judge of Kanpur; but the appeal was dismissed. The matter came up in revision to this Court; but the revision was also rejected. On 1-4-1946, the Official Receiver, after making inquiries into the nature of the debts, came to the conclusion that the debts were fictitious. There was an appeal, against the order of the Official Receiver, to the Insolvency Judge, who recorded a finding that the debts were genuine; and made an order, on 12-4-1948, directing the Official Receiver to enter the debts in the Schedule. He made a further order that "Kotwaleshwar will bear all the costs of the creditors hitherto incurred." Then, the applicant filed an appeal in the Court of the District Judge challenging the said order of the Insolvency Judge. This appeal was held to be incompetent and dismissed on 18-7-1950. The present application is directed against the order of the District Judge dismissing the appeal.

(2.) The ground on which the learned District Judge proceeded was that the Official Receiver represents the estate of the insolvent, and it was for him to prefer an appeal if he thought fit to do so; and that the insolvent was not an aggrieved person, within the meaning of Section 75, Insolvency Act, and as such he had no locus standi to prefer an appeal.

(3.) The learned District Judge has referred to certain cases cited before him; and one of these cases is shown as reported Badri Prasad v. Bhagwati Dhar, 16 ALL. 243. Learned counsel for the opposite party pointed out that the reference is incorrect and the case cited before the learned Judge was the one reported in Sakhawat Ali v. Radha Mohan, 41 ALL. 243. It is always desirable to give in a judgment or order full particulars of the cases cited or relied upon to avoid confusion. The learned Judge has referred to another case reported in 97 Ind. Cas. 556 (2) which is also reported in Ganga Sahai v. Mukarram Ali Khan, 24 ALL. L. J. 441, The third case cited by the learned Judge is Shankar Lal v. Radhakisan, (1950 Nag. L. J. 100).