HORO MOHAN PRAMANICK Vs. MOHAN DAS PALI

JUDGEMENT

(1.) This appeal is preferred by a creditor. In February 1915, the respondent Mohun Das filed a petition in the District Judge's Court under the provisions of the Provincial Insolvency Act. In his petition, he mentioned three decrees and a fourth debt - the total sum coming to over Rs. 800. The appellant filed a petition alleging that Mohun Das had considerable property available for meeting these debts. The Judge examined the petitioner and adjudicated him an insolvent, and at the same time recorded a note to the effect that the creditor had appeared and made this representation. No receiver was appointed and no other order was passed. In June 1922, the appellant creditor put in a petition asking the Judge to direct the Najir to take charge of the properties then in the possession of Mohun Das. The Judge refused to do so on the ground that the order of adjudication had been passed seven years previously. Then the creditor asked that some other competent person might be directed to take possession, and this request was also refused on the same ground. The creditor has preferred this appeal against these two orders.

(2.) A preliminary objection is taken to the effect that no appeal lies, I think this is probably correct. But under Section 75, Clause (3) of the present Insolvency Act, we have the right to grant leave to appeal and this is a case in which I think we ought to do so.

(3.) The question then is whether the Judge was right or wrong in refusing to appoint a receiver or whether he ought to have passed some other order which would make the insolvent's properties available for payment of his debts, if such properties could be found. I think it is clear that the learned Judge was wrong. The mere fact that seven years had passed was not sufficient reason for refusing to make such an order. It is clear that the whole proceedings have been misunderstood by the lower Court and the order of adjudication has, in effect, been treated as an order of discharge as well. That is not the proper procedure. The Judge, must now appoint a receiver and direct him to take charge of any assets that he may find belonging to the insolvent and then to proceed in accordance with law to realise these assets for the benefit of the creditors. No order as to the costs in this appeal is made.