SUNDER LAL Vs. LBENARSI DASS

JUDGEMENT

(1.) This is an execution first appeal brought by two objectors Sundar Lal and Genda Ram against the nominal decree-holder Benarsi Das and his vendee of the decree Shambhu Dayal. The facts so far as ascertained are that there was a decree No. 58 of 1924 in the Court of the Senior Sub-Judge of Amballa in favour of Benarai Das and the decree was against Jyoti Prasad, Sundar Lal and Genda Ram, sons of Shankar Das, proprietors of the firm Shankar Das Jyoti Prasad, residents of Amballa. The final mortgage decree under Order 34, Rule 5 was dated 20th October 1934. On that decree there was a sale of the property mortgaged and the date of sale is not known. The sale of the property did not produce the full amount of the decree and a certificate has been sent from the Punjab Court to the District Judge of Meerut for the amount of Rs. 15,046-4-0. An application is made by the decree-holder that this amount should be realized under Order 34, Rule 6 by a personal decree against certain property in Qasba Kairana in Meerut district, the property consisting of one haveli and one compound with certain houses situated there. An objection was taken by the present appellants in which they stated that they applied to be declared insolvents on 28 May 1926 in Insolvency Case No. 34 of 1926 and were declared insolvents. It is further stated that there was an order of discharge by the Insolvency Court on 5 May 1931. The objectors claim that they have one-third share in the house and compound and that that share is not liable to attachment and sale in satisfaction of the decree.

(2.) The date of the decree under Order 34, Rule 6 is given by the Court below as 4 April 1932, but is stated by the decree-holder in his reply to be 29 June 1932. The Court below in a very brief order held that the objection should be dismissed. The order of adjudication has not been produced but there is the order of discharge dated 5 May 1931. This order is in insolvency file No. 34 of 1926 and it is not quite clear from the order whether the firm of Shankar Das Jyoti Prasad was or was not concerned in the insolvency or whether it was only another firm Genda Ram Sundar Lal. If there had been any merits in the point of law, this would have required further decision by the Court below on production of the actual orders of adjudication. The order sets out that the assets were only sufficient to cover a small fraction in the rupee, that the discharge was granted but its operation was suspended for a further period of two years and that unless the receiver considered that there was any prospect of raising a substantial sum by sale of the Kairana property this should now be released. For the purpose of this appeal, we may assume that there was an adjudication of the judgment-debtors as insolvents and that this order was one of release of those judgment-debtors from the insolvency. The point which arises for decision is whether the decree- holder is entitled to proceed under his decree of Order 34, Rule 6 by the attachment and sale of the property of the judgment-debtors assuming them to have been insolvents. It will be noted that the insolvency order of discharge was dated 5 May 1931 and was suspended for a period of two years and that the decree under Order 34, Rule 6 was subsequent on 4 April 1932. But we do not think that the case need be decided on any point of time in regard to these debts. The argument for appellants was that Section 34, Provincial insolvency Act, Act 5 of 1920, provides SIH follows: (1) Debts which have been excluded on the pound that their value is incapable of being fairly estimated and demands in the nature of unliquid sited damages arising otherwise than by reason of ii contract or a breach of trust shall not be provable under this Act. (2) Save as provided by Sub-section (1), all debts and liabilities, present or future, certain or contingent, to which the debtor is subject when he is adjudged ii n insolvent, or to which he may become subject before his discharge by reason of any obligation incurred before the date of such adjudication, shall be, deemed to be debts provable under this Act.

(3.) Appellants claim that the decree under Order 34, Rule 6 is a personal decree arising out of the mortgage which mortgage was a debt to which the debtors were subject when they were adjudged insolvents and therefore that debt was a debt coming under Section 34(2) as a debt provable under the Act. Learned Counsel next referred to Section 44(2) which states: Save as otherwise provided by Sub-section (1), an order of discharge shall release the insolvent from nil debts provable under this Act.