Iyappa Nainar vs Manickka Asari

This is an appeal u/s 46, Clause (2) of the Provincial Insolvency Act, from an order of the District Judge of South A root dismissing a petition

put in by creditor asking the Court to take action against an insolvent u/s 43, Clause (2)(b) of the Act. A preliminary objection is taken that a

creditor has no right of appeal in that he is not ''a person aggrieved'' by the order within the meaning of Section 46(1). In a case reported in Kadir

Baksh v. Bhawani Prasad ILR (1892) All. 145 a Judge of a Small Cause Court refused to take action u/s 359 of the CPC against an insolvent and

a revision petition was entertained by the High Court against the order at the instance of a creditor. This however does not assist the appellant as in

revision the Court acts suo motu. It has been held in the matter of Rash Behari Roy v. Bhughwan Chunder Roy ILR (1890) Cal. 2 under the

Insolvent Acts 11 & 12 Vict., cap. 21, that Section 50 should be administered as the Criminal law is administered and specific charges framed,

and this has been the practice of this Court. What the Court has done in effect is that it has taken cognizance, enquired into an allegation of a

criminal offence and refused to frame a charge. Under no principle of Criminal law is a complainant entitled to appeal against such refusal as in all

criminal proceedings the Grown is in theory the prosecutor, and we see no reason why a different principle should prevail where the criminal

jurisdiction is exercised by a Civil Court. Under the Bankruptcy Act, 1883, the Court has power to commit-vide Section 165. Section 164(2)

gives an appeal in Bankruptcy matters ""at the instance of any person aggrieved."" Section 73 of the Indian Insolvent Act gave an appeal by way of

petition to the Supreme Court from any proceeding of the Commissioner at the instance of any person ""who shall think himself aggrieved."" We

have not been referred to any case under either of these Acts or earlier Bankruptcy Acts in England where a creditor has been held ''a person

aggrieved'' by the refusal of the Court, nor can we find any such case. The absence must be attributable to the principle above stated, and in that

view the preliminary objection must be uphold and the appeal dismissed with costs.