BROJENDRA NANDAN SAHA Vs. NEKUNJA BEHARI DAS

JUDGEMENT

(1.) This is an appeal preferred by certain creditors from an order adjudicating three persons as insolvent. The three persons so adjudicated are brothers, who alleged that they had been carrying on a business in silk which proved a failure involving them in a heavy debt to the extent of Rupees 44,000 odd in consequence of which they had been compelled to close the business. The debts were set out in a schedule annexed to their petition, and it was stated that some of the creditors had obtained decrees and that in respect of some such decrees some of the properties of the three brothers had already been attached, while in respect of others execution would shortly be applied for Schedules of joint properties, movable as well as immovable, and of joint claims against some debtors not already barred were also appended to the petition.

(2.) The substantial point urged in the appeal is that a joint petition by the three brothers was not maintainable. Reliance in this connexion has been placed upon the decisions in Sorada Prosad Ukil V/s. Ram Sukh Chanda (1905) 2 CLJ 318 and Kali Charan V/s. Hari Mohan 1920 Cal 964. The former of these decisions was passed when the provisions as to insolvency were contained in the then Civil P. C. (Act 14 of 1882) and it was held that Section 344 of the Code did not contemplate a joint application by several judgment-debtors to be adjudged insolvent, and that if in execution of a joint decree against several persons their joint property was attached and all or some of them applied to be declared insolvents, each must make a separate application under Section 344 of the Code and the case of each of them should be tried separately from that of the others. The decision proceeded upon the view that if a contrary view was adopted there would be serious inconvenience in holding the investigation and trial. In the latter decision, the reasons given as aforesaid being adopted it was held, under the Provincial Insolvency Act ( (SIC) of 1907), that the said reasons would also apply to the case of an application made against several joint debtors and that consequently a declaration of insolvency cannot be asked for in one petition against several joint debtors. In the said decision it was further observed that there is no provision in the Provincial Insolvency Act for proceeding, against two or more persons, who are partners, in the name of the firm. The decisions aforesaid are no longer law in view of the fact that the rules framed by this Court under S 79, Provincial Insolvency Act (5 of 1920), presuppose a joint petition by a partnership or a firm (vide, Rr. 19 to 24).

(3.) The word "debtor" used in Section 10 of the Act, which lays down the conditions on which the debtor's petition may be presented may, under the General Clauses Act, 10 of 1897), S 13, be interpreted in the plural; and if the conditions mentioned in Section 10 aforesaid are satisfied there is no other provision in the Act in consequence of which such a joint petition would not be maintainable Under Section 5 of the Act, the powers and procedure of the Court, in proceedings under the Act are to be the same as in the exercise of its original civil jurisdiction. And the true test to apply, in our opinion, is to see whether a joint petition, treated as a plaint, would be bad for multifariousness, that is to say for misjoinder of causes of action or of parties.