MAHOMED ROSHAN SHEIKH ALLI KASKAR Vs. GULAM MOHIDDIN

JUDGEMENT

(1.) In this case the decree-holder made an application for the arrest and imprisonment of the judgment-debtor No. 5. The learned First Class Subordinate Judge refused the prayer on the ground that the judgment-debtor No. 5 had been adjudged an insolvent and could not, therefore, be arrested. Under the old Section 16 of Act III of 1907, no creditor to whom the insolvent is indebted in respect of any debt provable under the 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. Under Section 28(2) of the present Act of 1920 the creditor shall not have any remedy during the insolvency proceedings against the property of the insolvent and a new Section 31 has been enacted under which the insolvent, in respect of whom an order of adjudication has been made, has to apply to the Court for protection, and the Court may, on such application, make an order for the protection of the insolvent from arrest or detention. The provision under the old Act gave an undue protection to dishonest debtors. Under the present Act, it is for the insolvent to apply for a protection order under Section 31. The protection order is a privilege to be granted or withheld as the Court, in its discretion, may determine, and in exercising that discretion it is relevant and proper for the Court to have regard to the character and circumstances of the insolvent.

(2.) In the present case no order for protection under Section 31 was produced before the Subordinate Judge, nor is it, produced before us. Under Section 28 of the Provincial Insolvency Act, the effect of an order of adjudication is described, and protection from arrest and execution of a decree is not provided. If it had been the intention of the Legislature to protect the insolvents, the provisions of Section 31, which permit an insolvent to apply to the Insolvency Court for a protection order, would have been superfluous : see Maharaj Hari Ram V/s. Sri Kriahan Ram (1926) I.L.R. 49 All. 201. We think, therefore, that the view of the First Class Subordinate Judge is erroneous. We would, therefore, reverse the order of the lower Court and remand the case to the First Class Subordinate Judge for disposal of the application on the merits.

(3.) Respondents to pay the costs of the appellant. Murphy, J.