JUDGMENT
Davar, J.
1. In this suit a decree for Rs. 2171-10-G and costs and further interest on judgment was passed by Mr. Justice Candy on the 5th of March 1895 against both the defendants. The decree is partly satisfied by payment to the plaintiff of a sum of Rs. 600 which had been paid into Court and of a further sum of Rs. 1200 paid by the 1st defendant to the plaintiff subsequent to the date of the decree. The plaintiff now desires to execute the decree for the unpaid balance against the 2nd defendant. He has obtained a notice from the Prothonotary under Section 248 of the Civil Procedure Code calling upon the 2nd defendant to show cause why the decree should not be executed against him. This notice was first argued before me in Chambers on the 16th of February 1907 when Mr. Inverarity on behalf of the 2nd defendant showed cause against the notice. Erom the affidavit of the 2nddefendant, affirmed onthe7th of February 1907, it appears that in November 1890 one of the creditors of the 2nd defendant obtained a decree against him in the Bombay Court of Small Causes. The decree was sent to Poona where the 2nd defendant then resided and now resides, for execution and in August 1898 an order was made for the attachment of his property. In October 1898 he applied under the provisions of Chapter 20 of the Civil Procedure Code to the Court at Poona to be declared an insolvent. He gave a list of his creditors and mentioned the plaintiff as one of such creditors in the list he furnished to the Court. Notices were issued and the plaintiff was served with one of such notices. On the 11th of March 1899 there was a hearing and on the 13th of March 1899 the 2nd defendant was declared an insolvent and he was ordered to pay half his salary to the Receiver to be appointed by the Court. The 3rd of June 1899 was appointed for the creditors to come in and prove their claims. The second defendant in his affidavit then goes on to say that on that day none of the creditors proved their debts though some of them appeared. In conscquence of the failure to prove their debts on the part of his creditors-he says-no schedule was framed. Some of the creditors asked for and obtained time to prove their debts but failed to do so and on the 28th of July 1900 an order was made refunding to the 2nd defendant the accumulations of his half salary in the hands of the Receiver after deducting the sum due to the attaching creditor. In the affidavit of the 2nd defendant, affirmed on the 14th of February 1907, the exact sum refunded is stated to be Rs. 2018-15-0. The plaintiff throughout the insolvency proceedings never appeared before the Court at Poona and took no part in the proceedings. Mr. Setalvad for the plaintiff, however, admitted that he had notice of insolvency proceedings.
2. There was no contest before me as to the facts stated above. Mr. Inverarity on these facts asked me to discharge the notice and contended that the plaintiff was not entitled to execution of the decree. He very candidly pointed out to me that the case of Haro Pria v. Shama (1889) I.L.R 16 Cal. 592 referred to with approval in Sheoraj Singh v. Gouri Sahai (1893) I.L.R. 21 All. 89 was against his contentions but he said that the Bombay High Court had taken a very different view and he relied on a reierence made by the Ahmedabad Small Cause Court and the High Court’s answer to the reference reported in Ghotalal Bhagvan v. Nahansa (1882) P.J. 89. He also relied very strongly on the result of an application made under this Court s extraordinary jurisdiction wherein the opponent was the same person as the 2nd defendant in this suit and said that the decision of that application supported his contention. He produced and placed before me a certified copy of the application upon which a rule was granted and a copy of the order discharging the rule.
3. Mr. Setalvad, on the other hand, contended that the Calcutta decision was correct and doubted if the rule granted in the application referred to was not discharged on sonic technical ground. He contended that his client was not a scheduled creditor, that his client’s debt was not a scheduled debt and that therefore the 2nd defendant was not entitled to the immunity from arrest and imprisonment contemplated and provided by Section 357 of the Civil Procedure Code.
4. I adjourned the hearing of the notice with a view to obtain more information as to the proceedings in the Poona Court and more particularly to ascertain under what circumstances the rule granted in the application under the extraordinary jurisdiction of the Court was discharged.
5. The adjourned hearing came on before me on the 2nd of March 1907 when an affidavit of Mr. Coyaji who appeared for the opponent in the aforesaid application and of Mr. Shah who held his brief at a subsequent stage were placed before me.
6. I felt that if Mr. Inverarity’s contentions that the rule granted by the learned Chief Justice and Mr. Justice Batty was discharged on the merits were correct I would be bound to follow that decision even though it was in conflict with the Calcutta and Allahabad cases and with a still later decision of the Calcutta Court in Ashrafuddin v. Bepin Behari (1902) I.L.R. 30 Cal. 407 and I reserved my judgment to see if I could gather more information from the note books of the learned Judges who heard and dealt with this application.
7. I have now had the advantage of perusing the notes of both the learned Judges and the result leaves no doubt on my mind that that application was not decided on its merits. It appears from the proceedings on the file of the Court on its appellate side that the assignee of the plaintiff in a Poona suit presented a Darkhast to the Poona Court for execution of the decree against the defendant. The Darkhast was numbered 1513 of 1904. This Darkhast on the opposition of the defendant was on the 29th of November 1904 dismissed by the Poona Court. Against the order the applicant petitioned the High Court for revision under its extraordinary jurisdiction. This application is numbered 93 of 1905. This application was argued before their Lordships the Chief Justice and Mr. Justice Batty, and, after hearing arguments of the pleaders, they adjourned the hearing and ordered that the insolvency proceedings be sent for. The adjourned hearing came on on the 7th of July 1905, when the note of one of the learned Judges is as follows.
8. Mr. Shah “Scheduled creditor. My name is on the schedule.” Rule discharged with costs.
9. What Mr. Shah meant when he said his client’s name was on the schedule it is difficult to understand for admittedly in the case of this insolvent no schedule had been framed. In the notes of Mr. Coyaji’s arguments he is taken down as saying:- “Original list not scheduled. Under Section 352. If no schedule framed then remedy was under Section 353.”
10. From a perusal of the papers and the study of the learned Judge’s notes it is however quite clear that the appellate Court gave no judgment and made no judicial pronouncements on the merits of the different contentions urged before that Court.
11. The other case relied on by the learned Counsel for the 2nd defendant is the case of Chotalal v. Nahansa Jamnadas (1882) P.J 89. This was a reference by the Judge of the Small Cause Court at Ahmedabad and the learned Judges Messrs.Melvilleand Kembal], who considered the reference, merely record that they concur with the opinion of the Small Cause Court Judge. This is however expressly dissented from and overruled by Mr. Justice Farran and Mr. Justice Candy in the case of Maganlal Sankalchand v. Bechar Shankar (1807) P.J. 251. The learned Judges there express their inability to controvert the reasoning of the Calcutta case and dissent from the Bombay decision. Mr. Inverarity distinguished the case of Maganlal Sankalchand v. Bechar Shankar from the present case by pointing out that in that case a schedule had been framed whereas in this there was none. I do not think this distinction makes any difference so far as the question before me is concerned. All I have to see is whether the debt of the plaintiff is a ” scheduled debt. ” In this case the debt due to the plaintiff is not a scheduled debt because there is no schedule. In the other case it was not ”a scheduled debt ” because although there was a schedule the debt was not inserted in it. In either case the debt not being a “scheduled debt ” as required by Section 357 of the Civil Procedure Code the defendant can not claim the benefit of immunity from arrest or imprisonment in respect of that debt.
12. The case of Haro Pria v. Shama Charan Sen (1889) I.L.R. 16 Cal. 592 is followed by another case of Ashrdfuddin v. Bepin Behari (1902) I.L.R. 30 Cal. 407 wherein it is again laid down that ” a creditor whose debt has not been included in the scheduled debts within the meaning of Section 357 of the Code of Civil Procedure is entitled to proceed with the execution of his decree against the insolvent’s property notwithstanding his discharge.”
13. The Madras High Court seems to have taken the same view as the Calcutta Courts have clone as appears from the case of Arunachdla v. Ayyovu (1884) I.L.R. 7 Mad. 318.
14. At the second hearing of the notice Mr. lnvcrarity abandoned his contentions as to limitation under Section 230 of the Civil Procedure Code. Under the circumstances I have no option but to make the notice absolute, but I decline to make any order for costs. The plaintiff’s conduct is not such as deserves any consideration from the Court. He obtains a decree as far back as eleven years. He gets notice of insolvency proceedings soon afterwards. The 2nd defendant appears to have no property and no source of income except his salary. Half of that is ordered to be paid to the Receiver appointed by the Court. It accumulates in the hands of a Receiver for a considerable period. The plaintiffdeliberately ignores these proceedings and lies by for eleven years and now comes forward and asks for execution against his debtor. In this case the 2nd defendant was perfectly justified in appearing before me and resisting the application for excution of the old decree and I regret that he has been unsuccessful. As a rule these notices under Section 248 which came before me in chambers are heard ex parte and in making them absolute I decline to burden the defendant with costs as it is no fault of the defendant that the decree should have remained unexecuted for more than one year. If a defendant appears and resists execution on untenable grounds he is of course liable to pay costs. In this case the defendant had good grounds for appearing and attempting to resist execution and I think it would be unjust to add to the burden of this decree the costs of these proceedings. Both the plaintiff and the 2nd defendant will bear their own costs. Note.-After delivering this judgment I asked Mr. Setalvad how he proposed to execute his decree. The plaintiff was not in Court so Mr. Setalvad could not answer. This decree is to be sent to the Poona Court for execution and I should like to record here ray very strong opinion that it ought not to be executed against the defendant’s person unless he is proved to be concealing some property. If this decree was to be executed in Bombay and if execution against the person of the defendant was applied for the matter would have come before me in chambers under Section 245(b) on notice, and, as at present advised, if I was satisfied that the defendant was not concealing any property I would decline to make the notice absolute for defendant’s arrest and imprisonment.
