PURSINGH Vs. ALADKHAN

JUDGEMENT

(1.) 1. This is an application in revision against the appellate judgment of the District Judge, Nimar, in Miscellaneous Civil Appeal No. 1 of 1931. The case is one under the Provincial Insolvency Act and in the course of the proceedings against the insolvent Pursingh in the insolvency Court an allegation was made by one of the creditors Aladadkhan that the insolvent was an undischarged insolvent, and that he had, while under that disability, obtained credit from himself and two other creditors and also from the Government to the extent of Rs. 50 and upwards in each case, without informing the persons from whom he obtained credit that he was an undischarged insolvent. The insolvency Court held an inquiry and declined to send the accused to trial before a First Class Magistrate. The present non-applicant appealed against this order to the District Judge claiming that as the insolvency Court had held that Pursingh was an undischarged insolvent and that he had actually obtained credit for more than Rs. 50 the lower Court's order was wrong and should be set aside and requested the District Judge to reverse the lower Court's order and direct that a complaint should be filed. The learned District Judge reviewed the evidence and considered that there was a good prima facie case for prosecution and ordered a complaint to be sent to the District Magistrate for disposal by any Magistrate of the First Class having jurisdiction. The insolvent now applies in revision and contends primarily that the District Judge had no jurisdiction to make the complaint. This contention must succeed since it appears incontrovertible that in respect of an order by an insolvency Court refusing to take proceedings against an undischarged insolvent obtaining credit without disclosing the fact, the Court's order is final. In this view there is no necessity to discuss the reasoning of the learned District Judge, cogent though it may be. The first part of Section 75, Provincial Insolvency Act, reads : The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court, may appeal to the District Court and the order of the District Court upon such appeal shall be final.

(2.) THESE words replace the words of the corresponding Section 46 in the previous Act of 1907 : Any person aggrieved by an order made in the exercise of insolvency jurisdiction...... and as explained in Niadar v. Ramji Lal the present wording is the result of the action taken by the legislature to set aside a difference of interpretation of the corresponding words under the Act of 1907 between the Allahabad and Madras High Courts. The Allahabad High Court had held in Jabbha Lal v. Shib Charan Das (1917) 39 All 152 that an appeal can only be made by a receiver as being an aggrieved person within the meaning of Section 46 of the Act of 1907 in respect of an offence alleged under Section 43 of that Act to which Section 69 of the present Act corresponds, whereas the Madras High Court held in Thiruvenkatachariar v. Thangayiammal (1916) 39 Mad 479 that an individual creditor might be a person aggrieved and was entitled to appeal. It is now settled that not only the receiver but the debtor himself, any creditor or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction has a right to appeal. The opening words of Section 75, Insolvency Act, 1920 cannot be interpreted as meaning that the debtor, any creditor or the receiver may appeal in a every case, associating the words "aggrieved by a decision" with any other person only : the debtor, creditor or receiver must be himself aggrieved by the order before any appeal may be made. The question then arises, who is a "person aggrieved"? As pointed out by Lord Esher in Ex parte Official Receiver, In re. Reed (1887) 19 Q B D 174 : A man aggrieved is a man against whom a decision has been pronounced which has wrongfully refused him something, which he had a right to demand. and the same opinion is expressed by James, L.J., in Ex parte Sidebotham (1880) 14 Ch D 458. In Iyappa Nainar v. Manikka Asari (1917) 40 Mad 630, it was held that an appeal under Section 46(2), Provincial Insolvency Act, 1907, from an order dismissing an objection put in by a creditor asking the Court to take action under Section 43(2)(b) of the Act is not maintainable, as such creditor was held not to be a person aggrieved by the decision of the Judge who dismissed the petition after inquiry. The same view was taken in Gujar Shah v. Barkat Ali Shah AIR 1920 Lah 323, where the appropriate passage in Baldwin's Law of Bankruptcy and Bills of Sale was explained. In that work it is stated: The expression 'person aggrieved' means a person who has suffered a legal grievance by a decision which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something ... So a person who makes an application to a Court for a decision or any person who is brought before a Court to submit to a decision is, if the decision is against him, a person aggrieved by that decision.

(3.) NOW however much a creditor may be moved by righteous indignation that his debtor, who has become an insolvent, has obtained money from him without disclosing the fact that he is an undischarged bankrupt, such creditor cannot be said to have received any legal injury by the fact that the Court has refused to accede to his request to take such action as it is entitled to take under Section 72(2), Insolvency Act. A creditor is not in any different position materially, legally or financially whether the Court accedes to his request or no. The only person affected by the decision is the insolvent himself, and the insolvent will not appeal against an order declining to take action under Section 82 since manifestly he is not aggrieved by such an order. No creditor receiver or third party can be aggrieved by an order made under Section 72 whether it is an order directing the prosecution of the debtor or whether it is an order declining to direct the prosecution. It is indeed a question whether an order declining to order prosecution is an order under the Provincial Insolvency Act at all. It follows therefore that the only person who can appeal against an order under Section 72, Provincial Insolvency Act, is the debtor himself in the case where his prosecution has been ordered. I would note finally that had there been any intention on the part of the legislature to allow appeals against rejected applications for setting the law in motion against persons alleged to have committed offences punishable in Magistrate's Courts there would have been in the Insolvency Act some provision analogous to Section 476-B, Criminal P. C. which specifically provides for such an appeal. Nothing of the nature appears in the Provincial Insolvency Act and on the contrary the wording of Section 75, Sub-section (1) of that Act, definitely excludes any such appeal.