MAHARAJ HARI RAM Vs. SRI KRISHAN RAM

JUDGEMENT

(1.) A decree-holder applied for the arrest of the judgment-debtor, who was an insolvent, and it was granted by the first executing Court of the Sub-ordinate Judge. On appeal the learned District Judge held that in consequence of an order of adjudicaton in favour of the judgment-debtor passed by the Insolvency Court under Section 27 of the Provincial Insolvency Act, the respondent was protected from arrest. The decree-holder has come here in second appeal. It was first argued that the application for execution was time-barred because the insolvent was automatically discharged six months after the order of adjudication, that is, on the 13 November, 1921. The application was made by the appellant on 2nd March, 1925. We are of opinion that the provisions of Section 43 of the Insolvency Act do not contemplate any automatic discharge. A Bench of the Calcutta High Court was of that opinion in Abraham V/s. Sookias . Without an order of the Insolvency Court the insolvent is not discharged automatically at the end of the period fixed in the order of adjudiction for an application for discharge.

(2.) IN Section 28 of the Provincial INsolvency Act the effect of an order of adjudication is described and protection from arrest in execution of a decree is not provided. If it had been the intention of the Legislature to protect insolvents, the provisions of Section 31 which permit an insolvent to apply to the INsolvency Court for a protection order, would have been superfluous. We find that one of the learned Judges of this Court, Mr. Justice Daniels, held in Oudh that under the present Act the creditor can proceed to arrest as if no adjudication had taken place [Radhey Shiam V/s. Mohammad Taqi 72 INd. Cas. 911 : A.I.R. 1923 Oudh 36 : 9 O. & A.L.R. 37.] The first Court was correct in its opinion. We set aside the decree of the lower Appellate Court, restore the decree of the first Court and decree this appeal with costs of all Courts.