JAGAN NATH Vs. GANGA DAT DUBE

JUDGEMENT

(1.) THIS appeal arises out of insolvency proceedings. Panda Jagan Nath, the appellant here, presented a petition to be declared an insolvent. He had been arrested in execution of a decree obtained by Ganga Dat Dube. It is quite clear that on the admitted facts Panda Jagan Nath was entitled to have an order declaring him an insolvent. It appears that a civil suit had been brought against Panda Jagan Nath by Ganga Dat Dube in which it was alleged by the latter that Panda Jagan Nath had misappropriated certain diamonds which had been delivered to him for sale on commission. The first court had dismissed the suit. On appeal, however, the decree of the court of first instance was set aside and a decree for Rs. 800 and odd was made against Panda Jagan Nath. The learned District Judge in dismissing the petition of Jagan Nath to be declared an insolvent seems to have considered that the decree against him at the instance of Ganga Dat Dube must be taken as an adjudication that the diamonds had been criminally misappropriated by Panda Jagan Nath, particularly having regard to the fact that Panda Jagan Nath did not file a second appeal. THIS we think was quite wrong. Very little weight can be attached to the fact that no second appeal was filed, because in all probability the appeal would at once have failed upon the ground that it was a finding of fact behind which the High Court cannot go in second appeal. In any event if there was any just reason for thinking that Panda Jagan Nath had committed an offence punishable under the Insolvency Act, the proper course for the court would have been to have proceeded under Section 43, after having first made a declaration of insolvency and after also having framed a charge in analogy to the provisions of the Code of Criminal Procedure. See Chhatrapat Singh Dugar v. Kharag Singh Lachmiram (1916) I.L.R. 44 Calc., 535, and also Triloki Nath v. Badri Das (1914) I.L.R. 36 All., 250. We think that the order dismissing the application of Panda Jagan Nath was wrong. We allow the appeal, set aside the order of the court below and adjudicate Panda Jagan Nath an insolvent. The case will now be sent back to the court below to proceed with the insolvency matter in due course of law. The appellant will have his costs in this Court.