G SESHAIYANGAR Vs. ABVENKATACHALAM CHETTIAR

JUDGEMENT

(1.) A preliminary objection is taken by Mr. Ranga Ramanujachariar that this petition does not lie as the proper remedy of the petitioner was to have filed an appeal to the District Court against the order of the Subordinate Judge. The Subordinate Judge in directing the arrest of the petitioner acted in the exercise of his powers as a Small Cause Court Judge. The plea of the petitioner was that so long as the insolvency proceedings were undisposed of, he was not liable to be arrested in execution of the decree of the Small Cause Court. The Sub-Judge dealt with this objection as a Judge of the Court of Small Causes. Its correctness can be decided only by a Court to which the Small Cause Court is subordinate and that Court is the High Court. Therefore the petition was rightly filed in this Court. On the merits.

(2.) This was an application in execution of a decree of the Small Cause Court to arrest the petitioner who had been adjudicated an insolvent already. Proceedings were taken under Section 43 of the Provincial Insolvency Act, but, apparently on the ground that they may not be successful, they were dropped. While ordering execution of the decree by directing the arrest of the petitioner, the Judge was exercising his powers as a Judge of the Small Cause Court. Mr. Ranga Ramanujachariar argued that in directing the arrest of the petitioner the Judge really exercised the exceptional powers given to him by the penultimate clause of section 16, Clause 2 (b), of the Provincial Insolvency Act. I am doubtful whether a Judge sitting in the Small Cause Court can divest (himself) of his powers as a Judge of that Court and immediately proceed to dispose of an oral application made to him to exercise his powers under Section 16, Clause 2(6). Even if such an application had been made, though there is nothing on the record to show that it was made, before the immunity given in the Insolvency Act is taken away from a person, there must be a notice to him to show cause why he should not be arrested. As there are no indications in the proceedings before me to show that such a notice was given and that the petitioner had an opportunity of showing cause, I cannot accede to the contention of the learned Vakil for the counter-petitioner that the Subordinate Judge directed the arrest of the petitioner under Section 16, Clause 2(b).

(3.) The main contention relates to the question whether the adjudication proceedings against the insolvent had come to an end, thereby depriving the petitioner of the protection he had. The view taken by the Subordinate Judge is this: that as the proceedings under Section 43 of the Insolvency Act were contemplated by implication, the adjudication had been put an end to. I am unable to follow the reasoning. The Act provides various modes by which an adjudication can be annulled. Sections 42, 44 and 45 provide the procedure to be adopted for annulling an adjudication once made. None of the proceedings contemplated in those sections were adopted in this case and I am unable to agree with the Subordinate Judge that the mere fact that proceedings were contemplated under Section 43 is evidence of the Subordinate Judge having annulled the order of adjudication. As the adjudication must be deemed to have been subsisting, the arrest of the petitioner was illegal. I must, therefore, set aside the order of the Subordinate Judge; and as 1 am informed that the prisoner has undergone imprisonment no further order is necessary. 1 make no order as to costs in this Court.