AMTHALAL BHAGVANDAS Vs. CURSETJI DHANJISHA

JUDGEMENT

(1.) In this suit a decree for Rs. 2171-10-G and costs and further interest on judgment was passed by Mr. Justice Candy on the 5 of March 1895 against both the defendants. The decree is partly satisfied by payment to the plaintiff of a sum of Rs. 600 which had been paid into Court and of a further sum of Rs. 1200 paid by the 1 defendant to the plaintiff subsequent to the date of the decree. The plaintiff now desires to execute the decree for the unpaid balance against the 2nd defendant. He has obtained a notice from the Prothonotary under Section 248 of the Civil Procedure Code calling upon the 2nd defendant to show cause why the decree should not be executed against him. This notice was first argued before me in Chambers on the 16 of February 1907 when Mr. Inverarity on behalf of the 2nd defendant showed cause against the notice. Erom the affidavit of the 2nddefendant, affirmed onthe7 of February 1907, it appears that in November 1890 one of the creditors of the 2nd defendant obtained a decree against him in the Bombay Court of Small Causes. The decree was sent to Poona where the 2nd defendant then resided and now resides, for execution and in August 1898 an order was made for the attachment of his property. In October 1898 he applied under the provisions of Chapter 20 of the Civil Procedure Code to the Court at Poona to be declared an insolvent. He gave a list of his creditors and mentioned the plaintiff as one of such creditors in the list he furnished to the Court. Notices were issued and the plaintiff was served with one of such notices. On the 11 of March 1899 there was a hearing and on the 13 of March 1899 the 2nd defendant was declared an insolvent and he was ordered to pay half his salary to the Receiver to be appointed by the Court. The 3 of June 1899 was appointed for the creditors to come in and prove their claims. The second defendant in his affidavit then goes on to say that on that day none of the creditors proved their debts though some of them appeared. In conscquence of the failure to prove their debts on the part of his creditors-he says-no schedule was framed. Some of the creditors asked for and obtained time to prove their debts but failed to do so and on the 28 of July 1900 an order was made refunding to the 2nd defendant the accumulations of his half salary in the hands of the Receiver after deducting the sum due to the attaching creditor. In the affidavit of the 2nd defendant, affirmed on the 14 of February 1907, the exact sum refunded is stated to be Rs. 2018-15-0. The plaintiff throughout the insolvency proceedings never appeared before the Court at Poona and took no part in the proceedings. Mr. Setalvad for the plaintiff, however, admitted that he had notice of insolvency proceedings.

(2.) There was no contest before me as to the facts stated above. Mr. Inverarity on these facts asked me to discharge the notice and contended that the plaintiff was not entitled to execution of the decree. He very candidly pointed out to me that the case of Haro Pria V/s. Shama (1889) I.L.R 16 Cal. 592 referred to with approval in Sheoraj Singh V/s. Gouri Sahai (1893) I.L.R. 21 All. 89 was against his contentions but he said that the Bombay High Court had taken a very different view and he relied on a reierence made by the Ahmedabad Small Cause Court and the High Court's answer to the reference reported in Ghotalal Bhagvan V/s. Nahansa (1882) P.J. 89. He also relied very strongly on the result of an application made under this Court's extraordinary jurisdiction wherein the opponent was the same person as the 2nd defendant in this suit and said that the decision of that application supported his contention. He produced and placed before me a certified copy of the application upon which a rule was granted and a copy of the order discharging the rule.

(3.) Mr. Setalvad, on the other hand, contended that the Calcutta decision was correct and doubted if the rule granted in the application referred to was not discharged on sonic technical ground. He contended that his client was not a scheduled creditor, that his client's debt was not a scheduled debt and that therefore the 2nd defendant was not entitled to the immunity from arrest and imprisonment contemplated and provided by Section 357 of the Civil Procedure Code.