MULLAPALLI GOPALAN NAYAR Vs. KOPPATHIL GOPALAN NAYAR

JUDGEMENT

(1.) In this case, a debtor, who was governed by the Provincial insolvency Act, appealed to this Court, against the order of the learned District Judge arid as the learned Judges who heard the appeal differed, the matter comes before us.

(2.) The scheme of the Act is that, when the petition is filed and the debtor is adjudicated, the debtor automatically gets what is equivalent to what I am more familiar with, a protection order on the Original Side; because, by Section 16(2)(6) of the Provincial Insolvency Act, III of 1907. The insolvent if in prison for debt, shall be released: and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted, in respect of any debt, provable under this Act, shall, during the pendency of the insolvency proceedings, have any remedy against the property or person of the insolvent, in respect of the debt, or commence any suit or other legal proceeding, except with the leave of the Court and on such terms, as the Court may impose.

(3.) In this case, the leave of the Court has been granted for the man's arrest, the Court having previously - we do not question the order on that ground - refused his discharge. We may note, in passing, that we do not, as at present advised, see anything in Section 44 of the Act, to warrant the suggestion of Mr. Justice Waller, that the application for discharge when refused, is refused for ever and that no later application can be made, or no renewal of the former application; nor do we think that the real point in this case is as to any alternative remedy, as between refusing discharge and allowing arrest. What, we think happened here, is that the learned Judge below has really not given us any material, on which it is possible to say, whether he exercised his discretion properly. It is needless to say that we should not interfere with his discretion, on a matter of this kind, unless it appeared that it was not a judicial discretion. The short answer is that the learned Judge has expressed himself so briefly that we really cannot say, whether he expressed a judicial discretion or not. All that he says is, The respondent was adjudged insolvent in November, 1918; he declared no assets; he applied for discharge in 1921; that was refused on the ground that he had borrowed recklessly.