In Re: Mahomed Esmail Fazla

Crump, J.—Mahomed Ismail Fazla was adjudicated insolvent on February 1, 1924. On September 27, 1924, the Official Assignee applied to the Court for an order for the examination of five persons u/s 36 of the Presidency Towna Insolvency Act. On December 16, 1924, the three petitioners, being three of these persons, obtained a rule nisi calling upon the Official Assignee to show cause why the order for their examination should not be vacated. The rule was argued before me on January 20, 1925, and I reserved my judgment.

The nature of the controversy between the parties can be gathered from the affidavits. The insolvent in his affidavit of September 27, 1924, in support of the application for an order u/s 36, sets out a number of very serious charges against the petitioners, The substance of those charges is that they by coercion, fraud, undue influence, and forgery obtained mortgages of the insolvent''s property for which no adequate consideration was paid, "he properties in dispute are valued at many lakhs of rupees. The petitioners in their affidavit of December 16, 1924, deny those charges. The insolvent in his counter-affidavit of January 19, 1925, re-affirms them. In paras 4 and 6 of that affidavit it is stated that the object of the proposed examination u/s 36 is to obtain an order under clause 5 of H. 36 for the delivery of the property to the Official Assignee thereby avoiding the expense and delay of a regular suit.

I am not concerned at this stage with the merits of this dispute. It may, however, be noted that the Official Assignee at one time expressed an intention to file a suit, In the circumstances is it proper to allow the proposed examination u/s 36 ? In my opinion the object in view is beyond the scope of that section. It would not be possible to obtain the relief desired without setting aside the mortgages on the ground suggested, AB to the scope of Section 36 I agree with the remarks of Chitty J, in a somewhat similar case (In re Luca(1)). If it is correct to say, as I think it is, that Section 36 (4) and (5) was intended to provide a summary procedure for ordering payments of debts due and delivery of property where there was no dispute (see p. 114), it is obvious that the procedure under that section is inappropriate in the case of such disputes AS we have here.

The rule must be made absolute. No order as to costs.