MAKHAN LAL Vs. SRI LAL

JUDGEMENT

(1.) THIS is an appeal from the order of the Additional District Judge of Aligarh, whereby he, under Section 43 of the Provincial Insolvency Act (Act III of 1907), sentenced the appellant to simple imprisonment for one month in that he had fraudulently or vexatiously concealed or refused to produce certain books of account before the Receiver appointed in the matter of his insolvency. A preliminary objection is taken that, the appeal does not lie to this Court but to the court of the District Judge. It is urged that the court of the Additional District Judge is a court subordinate to the District Court as contemplated by Section 46 of the Act and that the appeal under that suction lies to the District Court. In this connection we may note that one of the grounds of appeal is that the Additional District Judge had no insolvency jurisdiction in that he has not been invested by the Local Government with powers under the proviso to Section 3, Clause (i), of the Act. In our opinion neither of these two pleas has any force. It is true that for certain purposes an Additional District Judge is subordinate to the District Judge. It is equally true that the Local Government has not issued any notification in respect to the Additional Distript Judge of Aligarh under Section 3, Clause I of the Act, Under that section of the Act the District Courts are the courts which have jurisdiction under the Act. The District Court means the principal Civil Court of original jurisdiction of the district. But, under Section 8 of the Civil Courts Act (Bengal, N.W.P. and Assam), Additional District Judges appointed under Clause (1) of the Section shall discharge any of the functions of a District Judge which the District Judge may assign to them and in the discharge of those functions they shall exercise the same powers as a District Judge. In the present case the District Judge having assigned one of the functions of a District Judge to his Additional District Judge, the latter has exercised the same powers as the former would have done but for his order. Under Section 20 of the same Act the appeal therefore lies to this court. The lower court, therefore, was in the present matter not subordinate to the District Court in the manner contemplated in sections 3 and 46 of the Insolvency Act, The lower court, therefore, was part and parcel of the District Court. It had jurisdiction, and the appeal lies to this Court. There remain only the merits of the case for consideration. The applicant was called upon to produce his books. He produced nearly all. In regard to the balance he stated that he had previous to the insolvency proceedings handed them over to three of his creditors. Apparently his case was that an attempt was made at first to come to a settlement with all his creditors, and for that purpose he had made over these books to these three. The opposite party, Sri Lal, is one of these three, and it was he who applied to the court to compel the appellant to produce the books. The appellant and Sri Lal were the only two persons examined by the lower court. The former swore that he had handed over the books and the latter denied it.The court also took into evidence a report by the Receiver that the other two creditors named had also denied receipt of the books from the appellant. These persons were alive, and could and ought to have been called and examined on oath. The inquiry has in our opinion been far too meager and summary, and the appellant should have a further opportunity of proving his allegation. We, therefore, allow the appeal, set aside the lower court s order and remand the case for full inquiry and decision according to law.

(2.) THE parties will abide their own costs of this appeal.