A SEETHA RAMAPPA Vs. GCRAMAPPA

JUDGEMENT

(1.) The order of the learned District Judge in this case cannot be supported. The insolvent's debts exceeded, Rs. 18,000 and his total assets realised is a little over Rs. 50. In these circumstances the Court was obliged by Section 42(1) to refuse an absolute order of discharge unless the insolvent satisfied the Court that the fact that the assets were not of a value equal to eight annas in the rupee on the amount of his unsecured liabilities had arisen from circumstances for which he could not justly be held responsible. There were also allegations that the insolvent had continued to trade after knowing himself to be insolvent. The learned District Judge did not consider these matters at all. He has made no reference to Section 42 but he has passed an order which on the face of it is wholly indefensible. He says that the petitioner is given an absolute order of discharge subject to the condition of paying two annas in the rupee. That is an impossible condition. The only conditions that can be imposed under Section 41(2)(c) are conditions with respect to any earnings or income which may afterwards become due to the insolvent or with respect to his after-acquired property. It is not possible to impose a condition that the insolvent shall pay any specified proportion of his debts. The learned Judge has further ordered that failing that, that is, failing payment of two annas in the rupee, the operation of the order of discharge be suspended for a period of 18 months. This order of the learned Judge was passed on the 7 of November, 1936 and the contention raised on behalf of the respondent is that, by the 7 of May, 1938, this had worked itself out, and the respondent had thereby become discharged. There is considerable confusion in the arguments addressed to us on this point.

(2.) Learned Counsel for the respondent has observed that under Section 41(2) the Court may (a) grant or refuse an absolute order of discharge; or (b) suspend the operation of the order of discharge for a specified time; or (c) grant an order of discharge subject to conditions.

(3.) Learned Counsel appears to be labouring under a delusion that if the Court says "I will suspend the operation of the order for 18 months", some order of discharge will automatically come into existence at the end of 18 months. This is obviously wrong. The operation of an order can only be suspended after an order has come into existence. It is not possible to suspend the operation of an order which has not yet been passed. Therefore it follows that if the operation of the order of the respondent's discharge has been suspended by the learned Judge for 18 months, the learned Judge must have granted him an order of discharge on or before the 7 of November, 1936. But under Section 42(1) of the Act the learned Judge could not grant him an absolute order of discharge without considering the further matters mentioned in that section.