OFFICIAL ASSIGNEE Vs. PSURYAKANTHAMMAL

JUDGEMENT

(1.) This appeal raises a question with regard to the right of the Court to commit to prison for contempt persons who have deliberately aided an insolvent in defying an order of the Court lawfully passed in the exercise of the insolvency jurisdiction.

(2.) On the 15 September, 1936, one B.G. Sundaram Naidu was adjudicated insolvent. His assets included a house No. 45, Guruvappa Chetti Street, Chintadripet, in which he, his wife and his son were living. This property was mortgaged to one Lakshmi and in the course of the administration of the estate the Official Assignee sold the property to the mortgagee. At the time of the sale the insolvent and his family were occupying the upper floor of the house and the room downstairs were in the occupation of tenants. On the 3 May, 1937, the learned Judge sitting in Insolvency (Wadsworth, J.) passed an order requiring the insolvent to vacate the premises on or before the 7 of that month. The tenants vacated the room which they were occupying and the insolvent and his family vacated the upper floor, but immediately he installed his wife, his mother and his son in the rooms downstairs. On the 8 June, 1937, the Official Assignee complained of this fact in a report to the Court. On the 19 July, 1937, Wadsworth, J., held that the insolvent was playing with the Court and gave him 24 hours to vacate the premises. He failed to comply with this order and on the 20th July, 1937, he was committed to jail for two weeks for contempt of Court. The insolvent appealed to this Court but his appeal was dismissed on the 27 July,. 1937. On the 30 July, 1937, the Official Assignee presented a petition to the learned Judge stating that the insolvent's wife and others were in possession of the house as the agents of the insolvent, and asking for an order of the Court directing the bailiff to remove them from the premises. This application was heard by Wadsworth, J., on the 2nd August, 1937. After the case had been called, the learned Advocate who now appears for the respondents, the insolvent's wife and son, appeared in Court and having entered an appearance on their behalf asked that one week's time be given to him to file an affidavit in opposition to the order which the Official Assignee was seeking. The time asked for was granted and within the time allowed the insolvent's wife filed an affidavit in which she alleged that there had been an agreement between her and Lakshmi Ammal under which she was to be allowed to reside in the house until a sum of Rs. 3,000 which she alleged she had advanced to Lakshmi Ammal had been repaid. The learned Judge dealt with the application of the Official Assignee on the 9 August, 1937. He did not believe this story and in his order stated that he had no doubt that the wife was acting at the instigation of the husband. He held, however, that he had no power to commit her for contempt of Court. He considered that his powers of committing an agent for contempt were limited to the powers conferred by Sub- section 5 of Section 58 of the Presidency Towns Insolvency Act which only refers to the delivery up to the Official Assignee of monies and securities. On this ground he dismissed the Official Assignee's application, and the present appeal is from the order of dismissal.

(3.) Before I discuss the law and the merits of the case I will first deal with an objection taken by the learned Advocate for the respondents that no appeal lies. He has cited the case of Abdul Gaff or V/s. The Official Assignee (1925) I.L.R. 3 Rang. 605 in which a bench of the Rangoon High Court held that Section 8 of the Presidency Towns Insolvency Act does not allow an appeal from an order passed in insolvency unless the order comes within Order 43, Rule 1 of the Code of Civil Procedure or is a judgment within the meaning of the Letters Patent. This decision has been criticised and it is in conflict with the decision of the Bombay High Court in Mahomed Haji Essack V/s. Shaik Abdool Rahiman (1915) I.L.R. 40 Bom. 461, where a much wider view was taken on the question of the right of appeal from an order passed in insolvency. It is unnecessary for the purpose of this case to consider which opinion ought to be accepted, because it is clear that the orderhere passed was a judgment within the meaning of Clause 15 of the Madras Letters Patent. The learned Advocate for the respondents has also said that the Official Assignee is not an aggrieved party within the meaning of Section 8 of the Presidency Towns Insolvency Act, I have been unable to follow up why he should not be regarded as an aggrieved party. He made an application to the Court in a matter which concerned the administration of an estate in insolvency. The Court refused to pass an order on the ground that its powers were of a very limited nature and the powers which it had were not sufficient to commit an agent where the contempt was of an order relating to the delivery to the Official Assignee of immovable property. The Official Assignee says that the learned Judge had power to pass an order against the respondents and if this is so he certainly is an aggrieved party.