GANESH Vs. HUKMICHAND

JUDGEMENT

(1.) This is an appeal under Section 75(2) of the Provincial Insolvency Act of 1920 by a debtor whose application for adjudication as insolvent under Section 10 of the said Act has been dismissed by the learned District Judge, Jodhpur.

(2.) The appellant's case was that his total debts amounted to Rs. 7619/-, that he was unable to pay the same and, therefore, he should be declared insolvent. In the schedule of the list of creditors which was filed by him along with the application it was shown that his debt of Rs. 5000/- was payable to one Hukmichand, that the second debt of Rs. 2044/- was also payable to the same person, and the third debt of Rs. 575/- was payable to one Godu. Thus, in fact, there were two creditors only. One of the creditors, namely, Hukmichand contested the application and urged that the appellant was a wealthy man and he was in a capacity to pay olf the entire debt. The learned District Judge observed that the first debt was incurred not only by the appellant but also by his three brothers, that the second debt was similarly incurred by the appellant along with his one brother, that the total share of the debts payable by the appellant thus came to about Rs. 2500/- and since his share in the house which was mortgaged for the first debt, was also of the value of Rs. 2500/- it could not be said that the appellant was unable to pay off his debts,

(3.) It is contended by learned counsel for the appellant that the finding of the learned District Judge is erroneous., that it would not be said what amount could be fetched on the sale of the immovable property, that the said property was not within his sole control that it could not be sold away by him alone and that in execution of the decree which was taken out by Hukmichand for the second debt of Rs. 2044/- his immovable property was already attached. It is, therefore prayed that the erder of the court below should be set aside and his client should be adjudicated as an insolvent.