L PIAREY LAL Vs. MOHAMMAD SALAMAT ULLAH KHAN

JUDGEMENT

(1.) A preliminary objection is taken to the hearing of this appeal that this appeal has abated. The respondents had applied for the adjudication of Piara Lal as insolvent. The Court adjudicated him an insolvent and Piare Lal appealed to this Court. During the pendency of the appeal Piare Lal died and his heirs have been brought on the record. It is contended on behalf of the respondents that the right to contest the order for adjudication was a personal right vested in Piare Lal, and that on his death the appeal abated.

(2.) The learned Counsel for the respondents relies strongly on three cases of the Lahore High Court which no doubt to a certain extent support his contention. In Hardhian Singh V/s. Sham Sundar (1888) 69 P.R. 1888, it was held by a Division Bench of the Punjab Chief Court that under the provisions of the then Code of Civil Procedure an order made under Section 351 was purely personal and on the death of an insolvent no one represented him for the purpose of defending an appeal against an order declaring him insolvent. No English oases were considered and the opinion was expressed simply on the general view that the right was a personal one and that no one could represent the insolvent after his death. This case appears to have been followed by the learned Sir Shadi Lal, C. J. and Zafar Ali, J. in Narain Singh V/s. Gurbakhsh Singh A.I.R. 1928 Lah 119. The learned Chief Justice following the ruling in Hardhian Singh's case Hardhian Singh V/s. Sham Sundar (1888) 69 P.R. 1888 held that an appeal preferred against the adjudication of an insolvent abates on his death, as the right to sue does not survive within the meaning of Order 22, Rule 4, Civil P.C. This case was of course followed by a learned Single Judge of the Lahore High Court in Attar Chand V/s. Mian Mohammad Mobin A.I.R. 1932 Lah 121 where it was remarked that once the application of the creditors for adjudication had been dismissed, the debtor was wholly absolved from all manner of liability under the Insolvency Act, and on his death the liability did not survive so as to entitle the creditors to resurrect the case against his representatives.

(3.) On the other hand the Madras High Court in two cases has expressed a some- what contrary opinion. In Venkatarama Aiyar V/s. Official Receiver it was held that an application by a debtor for adjudicating himself as an insolvent filed while he was alive could be continued and adjudication made even after his death, and in Ramathai Anni V/s. Kanniappa Mudaliar A.I.R. 1928 Mad. 480 it was held that Section 17, Provincial Insolvency Act, applies to the case of a debtor dying before the order of adjudication whether the petition for adjudication was presented by a debtor or by the creditor; and an order of adjudication can be passed on the petition after the debtor's death. It may also be mentioned that in that case the insolvent had died in the trial Court and his widow had been brought on the record as his legal representative and the creditor's petition was heard on the merits after overruling the widow's objection to be made a party. The appeal was also preferred by the widow and entertained by the Madras High Court without any objection having been apparently raised on behalf of the respondent that she had no right to continue the matter. It seems to us that the Madras view is in perfect consonance with the principles of English law. Section 17, Provincial Insolvency Act, provides: If a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the matter shall unless the Court otherwise orders be continued so far as may be necessary for the realization and distribution of the property of the debtor.