JIWACHH MAHTHA Vs. BANWARI SAH RAMLAGAN RAM

JUDGEMENT

(1.) This is an appeal by an insolvent against an order of the learned Additional District Judge of Darbhanga, dated ll December, 1939, under Section 41(2)(a) of the Act, refusing an absolute discharge. The appellant filed his application for adjudication on 20 August 1935. He was adjudicated insolvent on 5 December 1936, and directed to apply for his discharge within one year. He did not do this. He applied only on 21 December 1937, sixteen days late, stating in his application as a reason for the delay that he had been suffering from fever. He was directed to file a separate application, explaining his failure to apply in time, and on 17 January 1938 he did file a petition with an affidavit again ascribing the delay to his illness. Upon this petition the order passed by the Court was: Separate petition showing cause of delay filed. Admit the discharge petition. Issue notice to creditors fixing 19 February 1988 for hearing.

(2.) When the matter came up for hearing, the contesting respondent (creditor 18) opposed the discharge. The learned Judge observed that the first ground for refusing final discharge was that the application was time barred, since the petition for final discharge had not been filed within the time fixed. This ground, he said, was to his mind decisive, because he did not consider that sufficient cause had been shown for the delay. Apart from this, he considered that absolute discharge should be refused, because the insolvent had not filed registers and accounts regarding the shop kept by him before adjudication, and also he appeared to have run a rice and dal shop while under adjudication. For all the above reasons, he said, he refused an absolute order of discharge.

(3.) The order of the learned Judge is defective in several respects. First of all, the ground mentioned by him as decisive for refusing discharge, namely the delay in the application, is not one of the grounds specified in Section 42 at all for refusing to grant an absolute order for discharge. It might have been a ground for annulling the adjudication. But that is an aspect of the matter which the learned Judge did not consider at all. The main ground given for the order is therefore not a sound one, and the point which should have been considered in that connexion, namely whether the adjudication should have been annulled, was not considered.