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1959 DIGILAW 46 (GAU)

Anoubam Gourbapu Sarma v. Anoubam Radharomon Sarma

1959-07-31

T.N.R.TIRUMALPAD

body1959
JUDGMENT This is an appeal against the order of the First Subordinate Judge, Manipur allowing absolute discharge to the respondent-insolvent under Sec. 41(1) of the Provincial Insolvency Act. 2. Only two points were raised in appeal - one was that the learned Subordinate Judge had no jurisdiction to entertain and dispose of the application under the Provincial Insolvency Act in the absence of a Gazette Notification by the State Government investing him with power under Sec. 3 of the Provincial Insolvency Act. The second point raised was that the respondent acted in a mala fide manner in concealing a half share of the land under certain patta numbers which were obtained by him, as a result of the decision of the First Subordinate Judge in Title Suit No. 27 of 1954. 3. I shall take up the question of jurisdiction first. This insolvency case was originally filed as No. 5 of 1952 in the Court of the Judicial Commissioner as at that time the Judicial Commissioner alone had jurisdiction in the matter of insolvency. After the Provincial Insolvency Act was made applicable to Manipur on 1-1-1950, and the Manipur (Courts) Act, 1955 was also passed, insolvency cases stood transferred to the Court of the District Judge. Under Sec. 3 of the Insolvency Act, the Court of the District Judge has insolvency jurisdiction but the State can by a notification give concurrent jurisdiction to the Subordinate Judge also. There has been no such notification by the State Government in Manipur. But there is another provision as far as Manipur is concerned in Sec. 25 of the Manipur (Courts) Act, 1955, by which the Judicial Commissioner is given the power to authorise any subordinate Judge or Munsiff to take cognizance of or any District Judge to transfer to a Subordinate Judge any proceeding or class of proceedings under the Provincial Insolvency Act 1920. Sub-section (3) provides that proceedings transferred to a Subordinate Judge under the section shall be disposed of by him subject to the rules applicable to like proceedings when disposed of by the District Judge. The Judicial Commissioner has passed an order No. 9 of 1958 on 3-3-58, authorising the District Judge to transfer insolvency cases to the Subordinate Judge. It is by virtue of this authorisation that the District Judge transferred this case to the Subordinate Judge. 4. The Judicial Commissioner has passed an order No. 9 of 1958 on 3-3-58, authorising the District Judge to transfer insolvency cases to the Subordinate Judge. It is by virtue of this authorisation that the District Judge transferred this case to the Subordinate Judge. 4. But it was argued by the appellant, who is one of the creditors of the insolvent that the provisions of Sec. 3 of the Provincial Insolvency Act, 1920 and Sec. 25 of the Manipur (Courts) Act, 1955, are mutually inconsistent and that in such case Sec. 3 of the Provincial Insolvency Act should prevail and in the absence of any notification by the State Government, the disposal of this case by the Subordinate Judge must be held to have been done without jurisdiction. I am unable to see any inconsistency between the provisions in the two Acts. Both are Central Acts and one cannot prevail over the other. Provincial Insolvency Act is applicable to all the States in India, while Manipur (Courts) Act, 1955, is applicable only as far as the Union Territory of Manipur is concerned, which means that under Sec. 3 of the Provincial Insolvency Act, the State Government may invest the Subordinate Judge with concurrent jurisdiction in insolvency matters or the Judicial Commissioner may authorise the Subordinate Judges Court to take cognizance of such cases under the Provincial Insolvency Act or again the Judicial Commissioner may authorise the District Judge to transfer such cases to the Subordinate Judges Court. In any one of these ways, the Subordinate Judges Court can be clothed with jurisdiction to try insolvency cases. In the present case, it is the last mentioned authorisation which has been used. There is thus no conflict between the provisions of the two Acts and the Subordinate Judge was quite competent to dispose of this case. 5. With regard to the second contention also, I am unable to see any merits. The appellant and the respondent are brothers. The appellant filed Title Suit No. 27/54 to set aside certain alienations made by the respondent for partition of his half share and got a decree against the respondent and against certain alienees from the respondent, setting aside the said alienations. This was after the insolvency proceedings started. The decree declared the appellants right to a half share in the properties mentioned in that suit. This was after the insolvency proceedings started. The decree declared the appellants right to a half share in the properties mentioned in that suit. Now what the appellant would say is that by virtue of that decree, the alienations made by the respondent having been set aside in 1954, the respondent became entitled to the other half share in the said properties which thereby became available to the estate of the insolvent, and that the respondent acted in a mala fide manner in concealing the said properties from the receiver. I see no merits at all in this objection. There was no decree in favour of the respondent in the said suit declaring his half share. The alienation was set aside only in so far as the half share of the appellant was concerned. Thus it cannot be said that by virtue of the decree in that case, the respondent got any properties. Again, the appellant having obtained the decree and being thus fully aware of the decision in the said suit even in 1954, could have moved the Insolvency Court and the Receiver in insolvency to take charge of any such properties if available to the creditors. The appellant cannot be heard to say that the insolvent concealed any such properties. The fact that the appellant did not move in the matter until 1958 clearly showed that he himself did not consider that the respondent had become entitled to any such properties by virtue of that decree. Thus the present objection raised has no force at all. It is seen from the report of the Receiver that whatever properties were in possession of the respondent had been entrusted to the Receiver in insolvency. Six years have passed after the adjudication and the insolvent was fully entitled to apply for a discharge under Sec. 41 of the Insolvency Act. The learned Subordinate Judge was, therefore, right in granting the discharge. 6. I see no merits at all in this appeal. It is dismissed with the costs of the respondent. Appeal dismissed.