HAJI ABDUL KUTHUS SAHIB Vs. INAYATHULLA SAHIB

JUDGEMENT

(1.) This civil miscellaneous second appeal arises out of an order of the learned District Judge of North Arcot confirming an order of the learned District Munsif of Vellore allowing execution of a decree in O.S. No. 86 of 1923 on the file of the said District Munsif's Court. It was a money decree obtained by one Habibulla Sahib against defendants 1 to 4 in the suit on 22nd November 1923. Subsequent to the institution of the suit and before obtaining a decree, an application for attachment before judgment of a house belonging to defendant 1 was made and an attachment thereof obtained on 21 February 1923. The wife of defendant 1, one Maimoona Bi, preferred a claim to the said property on the ground that it was sold to her on 12 February 1923.

(2.) The plaintiff decree-holder resisted the claim on the ground that it was a fraudulent transaction. The claim was disallowed on 24 July 1923. The said Maimoona Bi filed O.S. No. 670 of 1924 on 25 July 1924 to set aside the order on the claim petition, but the said suit was dismissed for default on 6 July 1925 and the claim order had thus become final. An execution petition was filed on 12 July 1926, to execute the said decree by arrest of defendant 1, but it appears to have been dismissed for non-payment of batta. Subsequent to this, in 1927, an application seems to have been made by defendant 1 to adjudicate him an insolvent, and he was accordingly adjudicated. There was an order of discharge passed in the said insolvency proceeding on 6 February 192,8. It transpires that the house which was under attachment was not reduced to possession by the Official Receiver, nor does he appear to have taken any proceedings in respect thereof. The decree-holder died, and the present application is made by his legal representatives to have the said property attached and sold in realization of the decree debt. There seems to have been a subsequent litigation to which the decree-holder in the said O.S. No. 86 of 1923 was not a party, in and by which it was established that the house belonged to the wife, the said Maimoona Bi, and not to defendant 1 (Judgment in S.A. No. 8 of 1931 dated 14 October 1932, Ex. 3). The said Maimoona Bi died later. Subsequent to her death, defendant 1 as her heir settled his share in favour of one Kalik Sahib on 27 December 1932. After the present execution application was filed, defendants 2 and 3 appear to have conveyed the shares they inherited also in favour of their brother, Kalik Sahib, by two deeds dated 25 August and 24 October 1933, and Kalik Sahib having died, the whole property is now vested in defendant 1. He resists the execution application on two grounds, namely (1) that it is barred by limitation, and (2) that by reason of the order of discharge this property is not liable to be proceeded against in execution of a decree against him. In regard to the first point, both the Courts have concurrently found against him and this finding is not challenged before me.

(3.) The remaining question is whether this property is not liable to be proceeded against by virtue of the order of discharge. The learned District Munsif did not deal with this contention on the ground that the order of discharge was not filed before him. The learned District Judge refused to admit the said order in appeal and therefore did. not deal with the contention. Mr. K. Section Krishnaswamy Iyengar made an application for the admission of the said order in this appeal. This application was opposed by the respondents. Their learned counsel however submitted that if I should permit the order to go in, he should be allowed to raise the question that the order of discharge would not preclude him from attaching and selling the said property by reason of the execution proceedings already had and the order on the claim petition and the dismissal of the suit O.S. No. 670 of 1924 and he should be allowed to file documents relating thereto. In the interests of justice I allowed the documents on either side to be filed. It is contended that under Section 44(2), Provincial Insolvency Act, the decree has become incapable of execution. Section 44(2), Provincial Insolvency Act, provides: "An order of discharge shall release the insolvent from all debts provable under the Act." The effect of such a release as stated by Blackburn, J. in Thompson V/s. Cohen (1872) 7 QB 527 is that the insolvent is discharged from the debt altogether, and the debt is in fact gone, and he further says: "If the debt is gone, the creditor's right to seize in respect of it should be gone also." The object of the enactment is to enable a debtor who had given up all his property for the benefit of his creditors, to obtain his discharge, so that he might begin the world again freed from all his obligations and protected from oppression by his creditors: Per Kelly, C.B. in Jakeman V/s. Cook (1879) 4 Ex D 26 at pp. 28 and 29.