ANANTA KUMAR SAHA AND AMANDA CHANDRA SAHA; SADHU CHARAN SAHA PODDAR Vs. SADHU CHARAN SAHA PODDAR; HEM CHANDRA SAHA PODDAR

JUDGEMENT

(1.) In M.A. Nos. 354 and 355 of 1924. These two appeals are really covered by the same state of facts. The appeal that has been argued before us is Appeal No, 354 but the judgment which I am about to deliver will apply equally to Appeal No. 355.

(2.) The appeal is against an order of adjudication passed by the District Judge of Faridpur on the 13 August 1924. A petition was presented by the respondent in respect of two debts, first of all, a decree for Rs. 5,700 which was a consent-decree passed on the 11 January 1923 and secondly, an instalment bond for Rs. 6,400 dated the 24 January 1923. The acts of insolvency alleged in the petition were the removal of articles from the debtor's house so as to protect them from the creditors and secondly, the transfer of immoveable properties by the debtors to sortie other person who was. a relative of the debtor's wife within two or three days of the presentation of the petition. The Court has found the debts established and the acts of insolvency proved and has made the adjudication order.

(3.) The first point urged before us in this appeal was with regard to the decree for Rs. 5,700. This was passed in favour of the present petitioner and other persona and accordingly it is said that as the petitioner is only entitled along with others to the benefit of the decree he alone cannot present an insolvency petition in respect of this decree. Secondly, it is urged that so far as the instalment bond is concerned the debtor is only a partner with a very spall share in the Firm of Guru Charan Judhistir and that he really cannot be taken to be liable for the whole of the instalment bond and it is further urged that portions of the instalment bond, if not the whole, have already been paid and that a suit has been commenced to enforce the instalment bond. For these reasons, it is urged that there is no proper debt which would support the petition and that even if this is not so the petition was not presented bona fide but for ulterior purposes. So far as the decree for Rs. 5,700 is concerned I am inclined to think that the point is a good one and that as the respondent AS not the only person entitled to the benefit of that decree he is not entitled to utilize this debt upon which to found a petition for adjudication. But this is not a question of any importance because it seems to me that the bond for Rs. 6,400 is amply sufficient to support the petition. It is a bond executed by the debtors and others in favour of the petitioning creditor. It is a bond upon which the defendant is jointly and severally liable with the other persons by whom it was given and consequently, in my opinion, it is sufficient to support the petition for adjudication. It does not matter that the respondent may not be absolutely entitled to all the money secured by the bond, it is enough that the bond is in his favour. It is no answer to say that the debtor's share in the firm is a small one. He elected to give this bond upon which he is liable and he must bear the consequence and I am not prepared to say upon the evidence that the petition was presented with an ulterior motive. It is true that some of the persons who gave the bond are relatives of the petitioning creditor and that he is not proceeding against them but I do not think that this is sufficient by itself to establish a lack of bona fides on the part of the petitioning creditor.