RAMKISHEN Vs. SAJJAD ALI KHAN

JUDGEMENT

(1.) This is an appeal preferred by one Ramkishen against the Award of the Jagirdars Debt Settlement Board (hereinafter called the Board) dated 29th June, 1956, holding that the appellant herein has failed to adduce evidence and proof of his claim as against the jagirdar-judgment-debtor Sajjad Al i and that the decree obtained by him on the basis of an award which he seeks to enforce before the Board is a sham and collusive one. In the result it rejected the claim of the appellant. As regards the paying capacity of the debtor it declared him an insolvent under section 52 of the Jagirdars Debt Settlement Act (hereinafter referred to as the Act). These two findings of the Board are attacked in this appeal.

(2.) These proceedings related to the settlement of the debts of the jagirdar Sajjad Ali Khan. The said Sajjad Ali Khan filed Form No. I as required by the Act for the settlement of his debts under section 11 of the Act mentioning the extent of his liabilities and the names of his creditors. Among these persons is Ramkishen, creditor No. 8. Notices were issued to the parties under sections 21-A and 21-B of the Act and the parties were called upon to file their claims and statements of the case. The Board took up the case of each of the creditors separately and gave its own findings. The present appellant filed Form No. III on 17th January, 1953, claiming a sum of Rs. 41,702 as being the amount due from the jagirdar- judgment-debtor on account of principal and interest and costs. This claim he based upon an award, dated 26th June, 1952, which was made a rule of Court and a decree passed thereon on 30th June, 1952, in O.S. No. 41/1 of 1952 on the file of the City Civil Court. It is stated that one Bankatlal Kakani, another creditor filed a suit for cancellation of the decree passed in favour of Ramkishen alleging that it was a collusive and fraudulent decree, intended to defeat the interests of the other creditors. It was stated therein that the said Ramkishen, decree-holder, was not a person having the means to advance such a large sum as Rs. 40,000 and odd as was alleged by the debtor. This suit No. 166/1 of 1952 which was pending in the civil Court was transferred to the Board by the order of the Court dated 31st December, 1952. After the case came on before the Board, evidence was led with regard to the question as to whether the decree obtained by the appellant Ramkishen was a collusive and fraudulent one. It is not necessary to recapitulate the statements of the witnesses recorded by the Board on this question. On an appreciation of the evidence, the Board came to the conclusion that the evidence led on behalf of Bankatlal, the creditor who impeached the decree, cast grave doubts about the genunineness of the transaction between Ramkishen and the jagirdar. It held that Ramkishen had not produced all the evidence in the case to establish the genuineness of the transactions but rest content only with the arbitrators' award. It also discussed the evidence of Ramkishen in this case and came to the conclusion that it was discrepant. Having considered all the aspects arising from the evidence of the case it came to the conclusion that Ramkishen's claim could not be regarded as a genuine claim and rejected the same.

(3.) On behalf of the respondent, a preliminary objection was raised that no appeal lies. What is urged is that the Court below has dismissed the claim of the appellant and has declared the respondent an insolvent, but has not given any award so as to entitle the appellant the file an appeal under section 47 of the Jagirdars Debt Settlement Act (Act XII of 1952). On behalf of the appellant it is urged that the Court while dismissing the petition and declaring the respondent an insolvent has given an award and an appeal is permissible under section 47 (1) (v) of the said Act. In order to appreciate the respective contentions of the learned counsel, a reference to section 47 is necessary. It runs thus :