Two preliminary objections have been raised by the Respondents Pleader. The first is that no appeal lies. It is true that under Order 43 of the new Civil Procedure Code, incorporated in the Consolidation Regulation, there is no distinct provision for an appeal from an order passed under Order 21-A clauses 8 and 16; but this is manifestly due to an inadvertent omission. Order 21-A clauses 1 to 17 have been bodily taken from Chapter XX of the old Civil Procedure Code- Act 14 of 1982. They are indeed verbatim copies of sections 344 to 360 of the old Civil Procedure Code, in which section 588 sub-section 17 clearly provided an appeal from orders in insolvency proceedings. In the new Civil Procedure Code- Act 5 of 1908, the whole Chapter XX relating to insolvency proceedings was omitted for the simple reason that a separate and distinct Provincial Insolvency Act of 1907 had been passed, which in section 46 gave the right of appeal to he aggrieved party. In the Civil Procedure Code incorporated in the Consolidation Regulation, Order 43 of the British Indian Code of 1908 has been copied out without the necessary addition of the provision of section 46 of the Provincial Insolvency Act of 1907, or sub-section 17 of section 588 of Civil Procedure Code of 1882. This is a very serious: though unintentional, omission imposing considerable hardship and disability to aggrieved parties in insolvency proceedings. And the sooner it is made good the better. It is, however, possible to regard the order under appeal as coming under section 47 of the Civil Procedure Code which is appealable under Order 41.

But even if no appeal lay a revision would be admissible for there are more law points than one involved in the case.

The second objection is that the appeal should be rejected, because all the creditors have not been joined as respondents. Reliance is placed on Allahabad Weekly Notes (1897 page 102)(Munshi Lal v. Chaman Lal). This objection however cannot be allowed to prevail. The Decree holder himself or rather his Pleader was the applicant in this case and not the judgment debtor, to have himself declared an insolvent. The applicant had not impleaded any other creditor as a party in the Lower Court. It does not therefore lie in his mouth to say that the appeal from the order passed on his own application should be rejected for this defect. The ruling quoted does not apply. For in that case it was the judgment debtor who had applied for declaring himself insolvent; and he had presumably impleaded all his creditors as parties in the District Court. The Judgment debtor having himself gone in appeal against the order of rejection it was rightly held that he ought to have joined all his creditors as Respondents in the appeal. If then the decree holders application could be accepted, as it was in the Lower Court, without previously joining all the creditors surely the judgment debtors appeal from that order against the successful decree holder cannot be rejected merely because the other creditors, who were no parties to the original application have not been joined as respondents in this appeal.

One of the creditors, however, namely the Punjab Banking Company incorporated with the Alliance Bank of Simla (in liquidation) is voluntarily present in this court through Pandit Loknath Sharma, Pleader, who says that he has been instructed to oppose the Lower Courts order declaring the appellant insolvent.

The learned District Judge has declared Mohammed Bakhsh to be an insolvent has appointed a Receiver and has ordered Mohammed Bakhsh to show cause why he should not be committed to Jail. This order has been passed on Mr. Harbans Bhagats application presented on behalf of the Cawnpore Woollen Mills Company, decree-holder. The only enquiry conducted and evidence taken by the Lower Court before making this order was a statement of Mr. Harbans Bhagat, and of Mohammed Bakhsh judgment debtor. The reasons assigned by the Lower Court for declaring Mohammed Bakhsh ins

Click Here to Read the rest of this document