STATE OF U.P. ORS. Vs. FIDA HUSSAIN

JUDGEMENT

(1.) This is an appeal against the decision of the District Judge, Pilibhit adjudging the respondent as an insolvent for a period of 3 years. Despite sufficient service, the respondent has not put in appearance.

(2.) After going through the record and the judgment of the court below, it appears to me that the appeal deserves to be allowed. Admittedly, the respondent took a forest contract and a sum of Rs. 17,500.00 was due against him for which recovery, warrant of arrest etc. had been issued. In the petition for adjudging him as an insolvent the respondent had only mentioned the above mentioned facts. He had not alleged that he was possessed of any house property which was not liable to attachment in view of the fact that he was a labourer. In his statement on oath also, he did not say a word about it. The only place where the respondent mentioned that he was a labourer was while giving his engagement or business in the heading of deposition. He has admitted that he along with his brother and-mother owned a house in village Deoria Kalan in which he had l/3rd share. The court below adjudged the respondent as insolvent on the ground that under Sec. 60 C.P.C. the residential house of a labourer is exempt from attachment. According to Sec. 60 (C), house and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him are not liable to attachment, Therefore, before the petitioner respondent could claim exemption from attachment under Sec. 60, it was necessary for him to establish that he had been a labourer within the meaning of clause (c) of Sec. 60 C.P.C. As mentioned earlier, no assertion had been made either in the petition or in the deposition to the effect that the respondent was a labourer and as such his house property was not liable to be attached. The court below was, therefore, not justified in holding that the property was exempt from attachment and that the recovery could not proceed against the respondent. In a petition under -, it is essential that the petitioner must make out a case that he was unable to pay his debts and must give particulars of all his property together with specification of the value of such property and the place or the places where any such property is to be found. He has also to give a declaration that he was willing to place the property at the disposal of the court. If any property owned by the debtor is exempt from attachment and sale in execution of the decree, the said fact is also required to be mentioned in the petition under Clause (e) thereof. The respondent has clearly admitted that he owned a share in the house but the same was neither disclosed in the petition nor any ground for exemption has been mentioned in the petition. In these circumstances, merely because at the time of giving out his name etc. the respondent mentioned that he was a labourer by profession it did not entitle the court to treat him as such and exempt his property from attachment for the purposes of petition under Sec. 13. In these circumstances, the order of the court below is not in accordance with law. When a matter was required to be specifically stated in the petition and had not been stated, the court should not have taken notice of the same.

(3.) In the result, I find that the order under appeal is against law and is liable to be set aside. The matter is sent down to the Insolvency Court for deciding the petition afresh. Since the respondent has not put in appearance, there will be no order as to costs. Appeal allowed