Petition against insolvent’s wife barred by her examination u/s 36.

We consider it desirable that this appeal should be heard by a Bench of three Judges. The appeal raises more than one question of general importance under the Presidency Towns Insolvency Act and in regard to one of the points the decision of a Division Bench of this Court in Popaly v. Official Assignee, Madras1, which has been applied to the case by the learned trial Judge, in our opinion, requires reconsideration.

Judgment.

Satyanarayana Rao, J.-This appeal was heard by the Officiating Chief Justice (Rajamannar, O.C.J., as he then was) and myself on the 4th February, 1948, and as we felt that the decision of a Bench of this Court in Popaly v. Official Assignee, Madras1, which was followed by the learned trial Judge required reconsideration, we referred the matter to be heard by a Bench of three Judges. The order we then made is as follows:

“We consider it desirable that this appeal should be heard by a Bench of three Judges. The appeal raises more than one question of general importance under the Presidency Towns Insolvency Act, and in regard to one of the points the decision of a Division Bench of this Court in Popaly v. Official Assignee, Madras1, which has been applied to the case by the learned trial Judge, in our opinion requires reconsideration.”

The matter has accordingly been placed now before us for disposal.

The appeal is against the order of Clark, J., passed on a notice of motion taken out by the Official Assignee of Madras under the section 7 of the Presidency Towns Insolvency Act to obtain a declaration that property No. 10, West End Street, Gopalapuram, belongs to the insolvent, and that the respondent (wife of the insolvent) is only a benamidar for the insolvent in respect thereof. Before the learned Judge ‘the motion was not tried on the merits, and the hearing was confined to a consideration of two preliminary objections raised on behalf of the respondent in the motion. The preliminary objections were overruled by the learned Judge, and he directed that the application should be tried on merits.

The two preliminary objections raised were (1) that the proceedings were barred by the proviso to section 7 of the Presidency Towns Insolvency Act and (2) that it is not a fit case for disposal under section 7 of the Act as it raises complicated questions of fact regarding property of considerable value.

When the matter was heard by the Officiating Chief Justice and myself on the 4th February, 1948, on behalf of the Official Assignee, who is the respondent in this appeal, a preliminary objection was taken that the appeal itself was incompetent, as the order of the learned Judge does not amount to a ‘judgment ‘within the meaning of clause 15 of the Letters Patent, notwithstanding the provisions of section 8 of the Presidency Towns Insolvency Act under which a right of appeal is conferred from an order made by the Judge in the exercise of the Insolvency jurisdiction, the contention being that it was necessary for an appellant against an order of a Judge passed in the exercise of the insolvency jurisdiction to satisfy not only the requirements of section 8, sub-clause (2)(b) of the Presidency Towns Insolvency Act but that he must also satisfy that the order is such as fulfils the requirements of “a judgment” as interpreted by the Full Bench in Tuljaram Row v. Alagappa Chettiar2. At the time of the hearing now before us Mr. Sivaramakrishnayya, the Deputy Official Assignee, who argued the case on behalf of the Official Assignee did not press this point in view of a decision of this Court and two decisions of the Bombay High Court. The decision of our Court is V.A.V.S. Firm v. Muruganathan Chetty3, which takes a view against the contention of the respondent. The decisions of the Bombay High Court are Mahomed Haji Essack v. Shaik Abdool Rahiman4 and Nowroji Ardeshir v. Official Assignee, Bombay5. See also the opinion of Mulla’s Law of Insolvency at page 527, paragraph 785. This point therefore need not be pursued further.

T