Copyright
Chas. A. Stevens & Bros.

The Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) online

. (page 70 of 155)
Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 70 of 155)
Font size
QR-code for this ebook


terms of intimacy such as might naturally lead the plaintiff to entrust
the defendant with the task that he said he had entrusted him with. It
was to be borne in mind that, according to the Munsif's judgment, a body
of testimony had been given to show that such was the existing state
of things. Upon the llth April 1888, the pleaders for the plaintiff
(Maula Bakhsh having then been apparently examined as a witness
put in a petition which professed to be filed on behalf of the plaintiff,
and was eigned by the plaintiff's pleader, and the pleader for the
[143] defendant, and in that document there was a passage to the follow-
ing effect, " that in the bond written by Salig Ram which is in the
possession of Maula Bakhsh, if there be not the following words, namely,
that the money was received through Muhammad Zahur, let the Court
decide the case against the plaintiff in this suit, if the words are written,
let the Court pass judgment for the plaintiff. To this decision the parties
have no objection."

Then there was an order made upon that document : " the pleaders
for the parties have put it before me and verified ; it is ordered that Maula
Bakhsb, the witness for the defendant now in Court, put forward the
bond written by Salig Ram, the money of which Maula Bakhsh has paid
and got the bond back."

Now it is important to my view of this case to see what the precise
state of things was at that moment. Evidence had been g'ven to show
that the relations of the plaintiff and the defendant were of an intimate
and very friendly character. Maula Bakhsh had been examined, and had
made some admissions apparently favourable to the plaintiff's case, and
these pleaders, probably more in advertence to the credit to be attached

461



1891

Due. 8.

-
APPBL-

LATE
QlVIL,

H * 1*1 a
12 l.W.M,

(1898) 8.



14 All. 144 INDIAN DECISIONS, NEW SERIES [Yol

1891 to Mania Bakhsh than for any other purpose, entered into this arrange-
DBO. 8. ment, whioh was what ? That if Maula Bakhsh produced, or did not

produce, a particular bond for Es. 435 which had been redeemed by Maula

APPEL- Bakheh as the purchaser of the house, then the plaintiff would be
LATB discredited to that extent or the witness Maula Bakhsh would be
CIVIL discredited.

' I, however, much regret that through mistake upon my part when

iff A. 111= this appeal was originally argued I did not precisely appreciate the nature

12 A.W.N. of this particular document. I was under the impression, and my brother

(1892) 8. Knox says he was also under the impression, that it was a document which

was mixed up with the payment of the alleged Eg. 590 by the plaintiff to

the defendant, Muhammad Zahur. It is in consequence of that confusion

that the delay has taken place by reason of this remand order having

been made. However, in my opinion it is fully competent for my brother

Knox and myself, we having made no decree in this case as yet, to correct

[144] the mistake we fell into and to see that due justice is done to the

parties irrespective of that remand order.

Mr. Amiruddin who suported the appeal, and who, both on the
former occasion and the present occasion, has put forward every fair
argument that could be used in support of his views, has contended that
the moment the agreement of the llth April 1888, was filed in Court and
the moment of Maula Bahksh had been examined and proudced the bond
and the name of the defendant was found upon it, the jurisdiction of the
Court to try the case ceased, and it had no alternative but then and there
upon that material alone to proceed to decree in favour of the appellant.

I cannot agree with that view. I think it proceeds upon a mis-
apprehension of the mode in which our Courts have to deal with a case
under ss. 373 and 375 of the Code of Civil Procedure and a misapprehen-
sion of what is the true scope and operation of the Oaths Act of 1873. In my
opinion, there being a suit pending in the Court of the Munsif, that suit could
only be disposed of by a decree of some sort, either a decree passed upon
the evidence and in reference to all the materials upon the record, or a decree
passed upon an agreement for adjustment between the parties falling
within the terms of s. 375. Code of Civil Procedure. Now I entirely agree
with every word that is said by Mr. Justice Muttusami Ayyar in Vasudeva
Shanbog v. Naraina Pai (1). The learned Counsel for the appellant with
bis naturally acute mind omitted to notice that upon that particular
agreement, as it stood, the Court could pass no decree, but something else
had to be done, namely, the witness had to be examined, and Mr. Justice
Muttusami Ayyar has clearly pointed out in that case that that makes
a very considerable difference and removes agreements of such a character
from being recorded as an adjustment within the meaning of s. 375.

But lest the learned Counsel should suppose that I have not fully
considered this matter, I will deal with it in the aspect of the Oaths Act,
and, if be were to place his argument upon that statute, I would rule that
the Oaths Act does not constrain a Court to pass a decision in favour of
a particular party. If a party to a suit says, [145] he will be bound by
the oath of a particular person as read by the light of s. 11 of that statute
it means no more than this, that pro tanto he will be bound, that is to say,
in so far as the matter of that evidence is concerned, and that evidence
will be conclusive as to its truth, and the truth of that evidence will be
conclusive as against . him throughout the whole of that litigation.

(1) 3 M. 356.

462



VII] KADIB BAKHSH V. BHAWANI FEASAD 14< All, 146

But it in no way compels the Court trying the case to accept that evidence 1891
as conclusive. It may act solely upon that evidence, and in many oases Dae. 8.
it would act wisely to do so. But, on the other band, iti may be unwise
in some cases to do so, for instance, where the evidence, as in the present APPBL-
case, is so vague as not to convey any satisfactory idea to the mind of the LATE
Court. CIVIL.

I do not think that the document of tha llth April, 1888, was an adjust-
ment of the suit between the parties within the meaning of s. 375 which ** * 1*1"
compelled the passing of the decree in its terms, and consequently I do & A.W.N.
aot think that the evidence of Maula Bakhsh was conclusive of the suit. U892) 3.
That being so, I think there is nothing whatever to be said for this second
appeal. The learned Subordinate Judge upheld the conclusions of the
Muusif that the defendant bought the house for the plaintiff and that tne
plaintiff found the money with which the two-thirds of the house was pur-
chased, and that therefore the two-thirds was the property of the plaintiff
and the defendant had no right to resist his prayer for ejectment from
those premises. I dismiss the appeal with costs.

KNOX, J. 1 concur. Appeal dismissed.



14 A. 143 = 12 A. WN. (1892)6.

APPELLATE CIVIL..
Before Sir John Edge, Kt., Chief Justice, and Mr, Justice Straight.



KADIR BAKHSH AND ANOTHER (Applicants) v. BHAWANI PRASAD
(Opposite-party) * [5th January, 1892.]

Insolvency Procedure in cas'e of dishonest applicant Power t of the Court Civil Pro-
cedure Code, ss. 350, 359 Construction of statutes Reference to statement of Objects
und Reasons and to Report of Select Committee.

A Court is competent to taka action under s. 359 of the Civil Procedure Code
at the instance of a creditor, after the hearing under s. 350 has determined.

.[146] (Per STRAIGHT, J. It is desirable that an applioation under a. 359
should be made immediately or as soon as possible after the hearing under
s. 350, but a delay of some months will not make the applioation unentertainable.)

When once any of the frauds referred to in clauses (a), (b) or (c) of s. 359 have
been proved at a hearing under s. 350, the Court must under s. 359 either
itself pass sentence on the applicant who has committed such frauds, or must
send him to a Magistrate to be dealt with according to law. The Court has no
option to decline to adopt either of these courses.

In acting under s. 359, the Court does not re-try the questions of fact decided
by it at the hearing under s. 350, but has to proceed upon the findings come to
at that hearing, An applicant for a declaration of insolvency who does not avail
himself of his right of appeal from the order rejecting his application, is conclud-
ed by the findings of fact at the hearing under s. 350, and cannot afterwards
question them.

In construing a statute the Court cannot refer to the statement of Objects and
Reasons attached to a Bill, or to the report of a Select Committee, or to the
debates of the Legislature, but can only look to the statute itself. Queen Empress
v- Kartick Chunder Das (1) and Romesh Chunder Sannyal v. Hiru Mondal (2)
dissented from on this point,

[P., 22 B. 112 (123) ; Appp., 3 L.B R. 172 ; R., 7 A.L.J. 370=5 Ind. Gas. 503 (508) J
11 Or. L.J, 250 = 5 Ind. Gas. 805 (806) = 13 O,C. 55 (57)3; D, 17 A. 156.]



* Appeal No. 13 of 1891, under s. 10, Letters Patent.
(1) 14 0. 721, (2) 17 C, 852?

463



14 All. 14? INDIAN DECISIONS, NEW SERIES [Yol.

1892 THIS was an appeal under s. 10 of the Letters Patent from the

JAN. 5. following judgment of Knox, J., in which the facts of this case are

sufficiently stated for the purposes of this report.

APPEL KNOX, J. Karim Bakhsh and Kadir Bakhsh, the respondents in the

LATE application before me, applied to the Judge of the Court of Small Causes,

ClVIL. Allahabad, exercising powers as a Subordinate Judge, to be declared

insolvent. The learned Judge rejected their application with costs, and

14 A. 145= found on ^ the 12th March 1890 :

12 A.W.N. (i) " t b at fchg a ppii can tg had concealed property of large valua

(1OH5) 6, * * *

(2) " that it had been fully proved that they owned other property of
much greater value than they had entered in their application to be
declared insolvent."

(3) " that shortly before filing their application, the applicants had
either concealed or sold off the bulk of the stock they had in one of their
shops, and that they had done so with a view to prevent its being availed
of by their creditors."

(4)" that the applicants were guilty of fraudulent concealment and
transfer in respect of some of their property."

[147] One of the creditors, Bhawani Prasad, applied to the learned
Judge and prayed him to exercise the power conferred upon him by s. 359
of the Code of Civil Procedure.

The Court refused to exercise the jurisdiction vested in it by the Code.
In passing the order of refusal no reasons for declining to exercise this
jurisdiction are given, none of the findings at which the learned Judge
arrived on the 12th March 1890 are questioned. He contents himself
with recording " I am, however, of opinion that the present case is not
one in which the applicants for insolvency should be dealt with under
s. 359. That section certainly was enacted for the punishment of such
applicants as were found to be guilty of gross acts of fraud or concealment.
I do not think this can be said of the present applicants. I am there-
fore of opinion, that this is not a case which the Court should exercise
the powers vested in it by s. 359. "

I have the greatest respect for the findings of the learned Judge, but I
am clearly of opinion that s. 359 was framed expressly to meet the case
of a person to whom the findings of 12th March 1890 apply. The respon-
dents have in distinct terms been found guilty of concealment of wilfully
making false statements respecting the property belonging to them, and
of having fraudulently concealed, transferred or removed their property.
After such findings duly placed on record, should any of the creditors, as
in the present instance, press for an order under s. 359, the Court which
recorded those findings has no option but to pass a suitable order under
s. 359.

With the findings of fact I would not in any case as a Court of
revision interfere, and all I have heard in the course of the prolonged
arguments addressed to me by the learned counsel for the respondents has
only convinced me that those findings were most sound and proper finding.
j I accordingly set aside the order of the 19fch September 1890, and
direct that the case be returned to the Judge to pass proper orders under
s. 359 of the Code of Civil Procedure. The application is granted with
costs.

[148] From this judgment the applicants appealed under s. 10 of the
Letters Patent.

464



11] KADIR BAKESH V. BHAWANI PRASAD 14 All.

Mr. Amiruddifl, for the appellants. 1892

The Hon. G. T. Spankie and Munshi Ram Prasad, for.the respondent. JAN. 5.

JUDGMENT. APPEL-

EDQE, C. J. On the 5th August, 1889, the two appellants before us LATE
in this Letters Patent appeal applied to a Small Cause Courb Judge having CIVIL,
powers to deal as a Subordinate Judge with the matter, to be declared in-
solvents. On the 12bh March 1890 the Judge rejected that application, 14 * 1Ws *
having found that the appellants had been guilty of fraudulently conceal- 12 l.W.N,
ing and transferring property belonging to them. According to bioa such (1892)6,
frauds were proved ac the bearing which took place under s. 350 of the
Code of Civil Procedure. In July, 1890, the respondent here, who was
one of their creditors, moved the same Judge to proceed and deal
with these appellants under s. 359 of the Code of Civil Procedure.
The Judge issued a rule calling on these appellants to show cause,
and on the 19th September 1890 he discharged that rule on the
groun.d, apparently, that he did not consider the frauds which these
appellants bad committed to have been of a very gross character. On
application for revision by the creditor to this Court that application came
before our brother Knox, and he, being of opinion that, it having been
proved according to the judgment of the Judge at the hearing under s. 350
that the frauds had been committed by these appellants, the Judge was
bound to proceed under s. 359 of the Code, set aside the Judge's order of
19fch September, 1890, and directed him to pass proper orders under s. 359
of the Code of Civil Procedure. From that order of our brother Knox this
Letters Patent appeal has been brought. It has been contended that the
Judge had no power to proceed under s. 359 after he had made his order
rejecting the application of these appellants to be declared insolvents. It
has also been contended that it was discretionary with the Judge
to proceed or not under s. 359 of the Code. It was further contended on
behalf of these appellants that we were hound to look at the report of the
reasons and objects of the Select [149] Committee of December, 1886.
It was also contended on behalf of the appellants that it was open to
them now to question the correctness of the finding that the frauds
referred to bad been proved. As to the first contention, there is nothing
in s. 359, or in any other part of the Code to which our attention has
been drawn, which indicates that the Court cannot take -action under
s. 359 at the instance of a creditor after the bearing under s. 350 has
determined. As to the second contention, as I read s. 359, when once
any cf the frauds referred to in clauses (a), (b) or (c) of s. 359, have been
proved at hearing under e. 350, the Court must adopt one of two courses
prescribed by s. 359, that is, it must proceed to deal with the applicant
who has committed those frauds by passing sentence on him itself, or ifc
may send him before a Magistrate to be dealt with according to law. In
my opinion, under such circumstances the Court has not got the option
of declining to adopt either of these courses. As to the third contention,
we have been referred to the case of the Queen- Empress v. Kartic Chunder
Das (l) and the case of Romesh Chunder Sannyal v. Hiru Mondal (2).
I have the greatest respect for the Judges who were parties to those
decisions, but I must act on my own judgment in this matter. It appears
to me that when a Court has to put a construction on a statute, whether
of the Imperial Parliament or of the Legislative Council of India, it is the

(1} 11 C. 721. (2) 17 0, 852.

465

A VII 59



14 All. 150 INDIAN DECISIONS, NEW SERIES [Yol.

1892 statute alone to which the Court is entitled to look. The principles upon
JAN, 5. which statutes have to be construed are the same whether in Courts

of law or in Courts of equity, notwithstanding some mistaken views on

APPEL- that subject abroad. On that subject it is hardly necessary to say for the
LATE understanding of lawyers that that point has been concluded by the House
CIVIL ^ ^ or ^ s> No doubt debates in the House of Commons or the House of

' Lords or reports of Special Committees, whether of one or other of these

14 A. 195=* Legislative Assemblies or of the Legislative Council of India, are instruc-
12 A. W.N, tive historically if one has to consider, not what the statute says, but
(1892) 8, what may have been the motives of one or other party in promoting the
legislation . If one were to refer to such debates and reports in ordor to ascer-
tain [150] the true construction in law of a statute finally passed by the
Legislature, it would be necessary to see whether any alteration took place
between the time of the debate or the report and the final passing of
bill into statute-law, and one would be construing the language of the
report or the debate and not that of the statute. It is within one's own
experience that parties to legislation sometimes fail so to express them-
selves in the statute as to carry out the intention they had in passing the
statute, and that subsequent legislation is necessary in order by an amend-
ment of the original statute to express in statute language the meaning of
the Legislature. Another objection may be made that of two parties,
members of the Legislature, who may approve of a bill as drafted, neither
of them may attach the same meaning to the wording of the bill. In such a
case what possible light could a reference to their opinions, when the bill was
passing into an Act, throw upon the true construction of the bill as passed
into statute law ? In my humble judgment, if Judges were to allow their
minds to be influenced in the construing of a statute by debates in Parlia-
ment or reports of Select Committees or other bodies on the bill, statute
law would be reduced to confusion, and instead of there being one principle
of construction of statutes well understood by lawyers, the construction of
statuteswould be reduced to no principle ab all. Eor these reasons I, for one,
decline to look at the objects and reasons referred to by Mr. Amiruddin, and
I do so because I wish to avoid affording what in my opinion would be a
bad precedent in this Court. As to the last contention on behalf of the
appellants, that it was open to them now to question the correctness of
the findings of fact of the Judge at the hearing under s. 350 of the Code,
I am of opinion that they are concluded by those findings. They had a
right of appeal against the order rejecting their application to be declared
insolvents, but they did not avail themselves of it, and the time has long
gone by when they could question those findings. Where a Judge proceeds
under s. 359 of the Code, he does not proceed to re-try the questions of
fact already decided by him at the hearing under s. 550, but he has to
proceed upon the findings which were come to by him at that hearing.
For the reasons which I have [151] stated, I agree with my brother Knox
that the Judge was bound to take action under s. 359 in one or other of
the manners specified in that section, and I would dismiss this appeal
with costs.

STRAIGHT, J. As the points raised in this appeal are somewhat
novel, and as incidentally a contention has been put forward by the learned
pleader for the appellants to adopt which would, in my opinion, be to
sanction a most mischievous precedent, I think it right to add a few words
to what has fallen from the learned Chief Justice. It seems to me that
the argument for the appellants really resolves itself into two heads, first,
that. the Subordinate Judge had no jurisdiction to take up this matter,

46G



YII] KADIR BAKHSH V. BHAWANI PRASAD 14 All. 152

he having on the 12fch March, 1890 declined to allow the petition of 1892
insolvency, and secondly, that under s. 359 the Subordinate Judge J AN - 5.
had a discretion and was entitled to refuse on certain findings already ~
recorded by him to punish the appellants. It will be convenient shortly *
to trace the proceedings under Chapter XX of the Code of Civil LATE
Procedure. That chapter provides that any judgment-debtor arrested CIVIL.

in execution of a decree, or against whom an order of arrest has been

made, may apply in writing to be declared an insolvent, and in that w w

application he is bound, amongst other matters, to state the amount, *' '
kind and particulars of his property and the value of such property not
consisting of money, his willingness to put it at the disposal of the Court,
the amount and. particulars of all pecuniary claims against him, and the
names and residences of his creditors, so far as they are known or can be
ascertained by him. Other matters I need not refer to. That application
has to be signed and verified in the same manner as a olaint, and therefore
he is bound in that application to speak the trath. Now what is the pro-
cedure which the Court then has to adopt ? Having read the application
it is to fix a date for hearing, and it is to issue notice to the creditors of the
applicant informing them of the application and of the date of hearing.
Now comes the important section, viz., s. 350, which provides for what is
to take place at the hearing, and among other matters the Court is directed
to examine the judgment-debtor and to hear all persons properly entitled
to be [152] heard in that proceeding ; therefore not only in his application
but in his examination is the applicant afforded every opportunity of making
a full statement as to the matters referred to in the application. S. 351
is a section the peculiar framing of which has often given considerable
difficulty to me acd I believe to other Judges. This much, however, is
certain, that no such application shall be granted, on the contrary.it shall
be refused, if the Court is not satisfied as to the various matters contained
in that' section. Now it was under s. 350 that the learned Subordinate
Judge, acting on the petition of these appellants, held various proceedinga
which culminated in his order of the 12th March, 1890, and I am bound to
presume that every act done was rightly done, and that when he rejected
the application he did so on materials which satisfied him that the appli-
cants had committed some or all of the acts mentioned in the section. Be
that as it may, the appellants did not avail themselves of the right of appeal
which they had under the law, and I entirely concur with the learned Chief
Justice that behind those findings the Subordinate Judge at a later period
was not entitled to go. Now Mr. Amiruddin's first point of jurisdiction is
that contemporaneously with the Judge's order of refusal of the 12th
March 1890, an application should have been made under s. 359
and should have been dealt with by that order, and that when once
the Subordinate Judge had made that order his power under the
chapter came to an end and he was not entitled to listen to any of
the creditors. There is nothing in the statute to warrant that con-
tention. I agree with the learned Counsel that it is better that an
application to a Court refusing an application of insolvency to proceed
under s. 359 should be made immediately, or as soon as possible, but
that is a long way from holding that when the respondents applied in
July, 1890 to the Subordinate Judge to enforce the provisions of s. 359 he
was without jurisdiction to entertain that application. Then comes the
point of discretion. Now it may well be that in some cases the word
" shall" is used (as for example in the case of the words "shall be lawful")
merely to confer on a Court a power which did not exist before, leaving it

467



14 All. 153 INDIAN DECISIONS, NEW SERIES

1892 to that Court to exercise a discretion. So it may happen that in a statute
JAN. 5. the [153] word " may " may be used in such a way as to create a duty that

must be performed, but in this a. 359 there can be, in my opinion, no

APPEL- doubt that the word " shall " as used there, and strongly contradistinguished
LATE from the word " may " used after, is used in an imperative and mandatory



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 70 of 155)