SHANKAR GANESH Vs. SATARA SWADESHI COMMERCIAL CO LTD

JUDGEMENT

(1.) THIS is a revision application by a judgment-debtor against an order made by the Assistant Judge of Satara on appeal from an order made by the Subordinate Judge of Islampur in an insolvency petition made by the opponent, who is the assignee of a decree obtained in Suit No. 10 of 1930 against the applicant. The said assignee filed a darkhast in 1941. During the pendency of that darkhast he also filed an application (No 2 of 1941) in insolvency against the applicant judgment-debtor who is an agriculturist. The present applicant contended; that the, application by his creditor to have him adjudged an insolvent was untenable under the Dekkhan Agriculturists' Relief Act as it was barred by Section 82(6) of the Provincial Insolvency Act. The learned Subordinate Judge accepted this contention and held that he had no jurisdiction to entertain the application. Section 82(b) of the Provincial Insolvency Act says that nothing in the Act shall apply to cases to which Chap. IV of the Dekkhan Agriculturists' Relief Act, 1879, is applicable. On appeal to the District Court the learned Assistant Judge who heard the appeal held that the Subordinate Judge had jurisdiction and he accordingly remanded the case to the original Court to be tried on merits. The argument of the learned Assistant Judge was on these lines. Section 24 of the Dekkhan Agriculturists' Relief Act preserved to every Subordinate judge the powers conferred by Sections 344 to 359 of the old Code of Civil Procedure as modified by Sections 25 to 33 of the Dekkhan Agriculturists' Relief Act in dealing with applications under the Civil Procedure Code or under the Dekkhan Agriculturists' Relief Act to have an agriculturist debtor declared an insolvent. Those sections of the old Code were repealed by the Provincial Insolvency Act of 1907 which has now been replaced by the Provincial Insolvency Act of 1920. Accordingly the reference to Sections 344 to 360A of the old Civil Procedure Code in the Dekkhan Agriculturists' Relief Act must be construed as applying to the corresponding provisions of the Provincial Insolvency Act. The old Section 344 corresponded to Section 9 of the Provincial Insolvency Act under which a creditor can present an insolvency petition against a judgment-debtor on fulfilling certain conditions. All that Sections 25 to 33 of the Dekkhan Agriculturists' Relief Act amounted to was to give certain advantages to agriculturist debtors and they did not take away any of the powers of the Subordinate Judges in dealing with insolvency petitions. Relying on these arguments the learned Assistant Judge thought that Section 82(b) of the Provincial Insolvency Act was no bar to the present petition being entertained by the Subordinate Judge.

(2.) MR. Dharap on behalf of the present applicant has contended, firstly, that no appeal to the District Court from the order of the Subordinate Judge lay, and, secondly, that it was not competent to the creditor opponent to present an insolvency petition against the judgment debtor. On the first point he has relied on Section 33 of the. Dekkhan Agriculturists' Relief Act, which says that no appeal shall lie from any order passed under Chap. IV except orders passed in exercise of the power conferred by Section 359 of the Code of Civil Procedure (corresponding to Section 69 of the Provincial Insolvency Act). The section undoubtedly says that no appeal from the order of the Subordinate Judge was competent to the District Court, but under Section 53 of the Dekkhan Agriculturists' Relief Act a revision lay to the District Judge on a question of legality or propriety of any order passed by a Subordinate Judge in any matter falling under Chapter IV of the Dekkhan Agriculturists' Relief Act. The question before the Assistant Judge was a question of jurisdiction of the trial Court and could very properly, therefore, form the subject-matter of revision. The order of the learned Assistant Judge may, therefore, be regarded as an order in revision and there was nothing irregular in his dealing with the question that was raised before him.

(3.) IT will be seen that this section only enabled a judgment-debtor against whom a money decree had been passed to apply to be declared an insolvent, no corresponding power to apply having been given to the decree-holder. But by Act XII of 1879 Section 344 was amended, the following being substituted therefor: Any judgment-debtor arrested or imprisoned in execution of a decree for money, or against whose property an order of attachment has been made in execution of such a decree, may apply in writing to be declared an insolvent. Any holder of a decree for money may apply in writing that the judgment-debtor may be declared an insolvent. Every such application shall be made to the District Court within the local limits of whose jurisdiction the judgment-debtor resides or is in custody. This amendment, therefore, gave the right to the holder of a money decree for the first time to apply that the judgment-debtor' might be declared an insolvent. IT should be noticed that the enactment of this amendment was prior to the enactment of the Dekkhan Agriculturists' Relief Act, which is Act No. XVII of 1879. Section 345 described the different matters which an application in insolvency should set forth, and Section 346 provided for the signature and verification of the applicant. The subsequent sections provided for service of the copy of the application, the powers of the Court, the procedure to be observed, the conditions on which the Court could declare a judgment-debtor to be an insolvent and other matters to be inquired into by the Court. Section 360 provided that the Local Government might, by notification in the official Gazette, invest any Court other than a District Court with the power conferred on District Courts by Sections 344 to 359 (both inclusive), and that the District Judge might transfer to any Court situate in his district and so invested any case instituted under Section 344.