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Bombay High Court
Mahomed Roshan Sheikh Alli Kaskar vs Gulam Mohiddin on 7 November, 1928
Equivalent citations: (1929) 31 BOMLR 206, 118 Ind Cas 791
Author: Patkar
Bench: Patkar, Murphy


Patkar, J.

1. In this case the decree-holder made an application for the arrest and imprisonment of the judgment-debtor No. 5. The learned First Class Subordinate Judge refused the prayer on the ground that the judgment-debtor No. 5 had been adjudged an insolvent and could not, therefore, be arrested. Under the old Section 16 of Act III of 1907, no creditor to whom the insolvent is indebted in respect of any debt provable under the Act shall, during the pendency of the insolvency proceedings, have any remedy against the property or person of the insolvent in respect of the debt. Under Section 28(2) of the present Act of 1920 the creditor shall not have any remedy during the insolvency proceedings against the property of the insolvent and a new Section 31 has been enacted under which the insolvent, in respect of whom an order of adjudication has been made, has to apply to the Court for protection, and the Court may, on such application, make an order for the protection of the insolvent from arrest or detention. The provision under the old Act gave an undue protection to dishonest debtors. Under the present Act, it is for the insolvent to apply for a protection order under Section 31. The protection order is a privilege to be granted or withheld as the Court, in its discretion, may determine, and in exercising that discretion it is relevant and proper for the Court to have regard to the character and circumstances of the insolvent.

2. In the present case no order for protection under Section 31 was produced before the Subordinate Judge, nor is it, produced before us. Under Section 28 of the Provincial Insolvency Act, the effect of an order of adjudication is described, and protection from arrest and execution of a decree is not provided. If it had been the intention of the Legislature to protect the insolvents, the provisions of Section 31, which permit an insolvent to apply to the Insolvency Court for a protection order, would have been superfluous : see Maharaj Hari Ram v. Sri Kriahan Ram (1926) I.L.R. 49 All. 201. We think, therefore, that the view of the First Class Subordinate Judge is erroneous. We would, therefore, reverse the order of the lower Court and remand the case to the First Class Subordinate Judge for disposal of the application on the merits.

3. Respondents to pay the costs of the appellant.

Murphy, J.

4. The decree-holder hats applied for execution against the respondent by his arrest and the learned Subordinate Judge, who dealt with the application, held that the respondent being an undischarged insolvent could not be arrested. The decree-holder has appealed. It seems clear that the learned Judge was mistaken. Section 28(2) of the Provincial Insolvency Act no longer protects an insolvent from arrest, and 31 provides for a protection order. It appears that no such order was obtained in this case. As pointed out in Maharaj Hari Ram v. Sri Kriahan Ram (1926) I.L.R. 49 All. 201. Section 31 would be superfluous were not an insolvent liable to be arrested. In this case the learned District Judge has granted an order of discharge, but he has suspended its operation for five years because of the insolvent’s fraudulent conduct in respect of an item of his property, which conduct in Judge’s opinion fell within Section 43, Clauses (1)(e) and (i). I agree that the learned First Class Subordinate Judge’s order refusing execution by arrest against the respondent must be set aside, and that he should dispose of the application acccording to law.

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