Jahar Ali vs Musharatan Nissabibi

James, J.—By the order under appeal the appellant was directed, as a condition of his being adjudicated insolvent, to pay into Court six rupees monthly out pi his salary and to place at the disposal of the Court his shares in ancestral property. If the petitioner did not obey these directions within one month his application for adjudication was to stand dismissed.

It is argued on behalf of the appellant that there is nothing in the Provincial Insolvency Act which warrants a conditional order of adjudication of this-nature, and that that part of the order was illegal which directed the applicant to pay to the Court Rs. 6 a month out of his salary. In the first place, it is to be observed that it was unnecessary to order that the petitioner should place at the disposal of the Court his share of ancestral property to be sold for the benefit of the creditors, because as soon as the petitioner was adjudged insolvent, whatever ''share he may have'' possessed in ancestral property would vest in the insolvency Court or in the receiver; The direction that the petitioner shall'' pay Rs. 6 a month out of his salary is illegal by virtue of the provisions of Sub-section (i), Section 60, Civil P.C.,

The proper course in this case, since the petitioner''s indebtedness was proved, was to pronounce an order of adjudication, and then subsequently when the time came for realisation of his assets, should it be discovered that he had other assets than those stated in his petition in insolvency, to take steps to realise them for the benefit of his creditors, and also if necessary, to take steps against the insolvent u/s 69, Insolvency Act.

The appeal is accordingly allowed and the order of the lower Court is set aside The petitioner is Adjudicated insolvent with directions that he must apply for his discharge within one year. The record will be returned to the District Judge in order that action may be duly taken in the ordinary course under the Provincial Insolvency Act. There will be no order as to costs.

Courtney-Terrell, J.

I agree.