Joynarayan Singh vs Mudhoo Sudun Singh

Wilson, J.—This is a matter brought before us by way of appeal from an order of the Deputy Commissioner of Manbhoom in Chota Nagpur. Acting under Chapter XX of the CPC he made an order adjudging a judgment-debtor to be an insolvent, and he did so on the application of the judgment-creditor.

We find ourselves constrained to set aside that order on a ground which unfortunately has no relation to the merits of the case. The ground upon which we are obliged to set aside the order is that the Deputy Commissioner had no jurisdiction to make it.

u/s 344 of the CPC "any judgment-debtor arrested or imprisoned in execution of a decree for money, or against whose property an order of attachment has been made in execution of such a decree, may apply in writing to be declared an insolvent;" and "any holder of a decree for money may apply in writing that the judgment-debtor may be declared an insolvent:" and "every such application shall be made to the District Court within the local limits of whose jurisdiction the judgment-debtor resides or is in custody." "District Court" is defined thus in Section 2 of the Code: "District means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a District Court)." So that in order to see whether the Deputy Commissioner''s Court is a District Court, we have to inquire whether it is a principal Civil Court of original jurisdiction within the district. We find that it is not so. The principal Civil Court of original jurisdiction throughout Chota Nagpur is the Court of the Judicial Commissioner. By gazetted order of the Local Government the Judicial Commissioner is given the jurisdiction of a District Judge throughout Chota Nagpur, and the Deputy Commissioners are given the jurisdiction of Subordinate Judges. It follows that the Deputy Commissioner was not empowered to make such an order as this by the operation of Section 344. But then we have to turn and see whether he has power u/s 360. Under that section "the Local Government may, by notification in the Official Gazette, invest any Court, other than, a District Court, with the powers conferred on District Court s by Sections 344 to 359 (both inclusive), and the District Judge may transfer to any Court, &c,"

We find by reference to the Gazette that the Deputy Commissioner''s Court has been invested by the Local Government with the powers that Section 360 authorises that Government to confer. But then in order to see what the powers conferred are we must look at the latter part of Section 360, which says, when such notification has been issued "the District Judge may transfer to any Court situate in his district and so invested any case instituted u/s 344. Any Court so invested may entertain any application u/s 344, by any person arrested in execution of a decree of such Court. "So that when a Court, other than a District Court, is specially invested with powers Tinder Section 360, those powers authorise it to deal with two classes of cases: First, cases transferred by the District Court; and, secondly, cases of persons who are in custody in execution of its own decree and who apply under the insolvency section. But there is no power given by Section 360 to any Court other than the District Court itself to entertain, apart from any transfer by the District Court, an application by a judgment-creditor to have his judgment-debtor declared an insolvent. This appears clear from the language of the section itself; and the same view has bean taken by the Madras and Bombay High Courts. See In re Waller I.L.E., 6 Mad., 430 and Purbhudas Velji v. Chugun Raichand I.L.R., 8 Bom., 196. It follows therefore that there was no jurisdiction in the Deputy Commissioner to make the order he has made. On that ground we set his order aside.

We find that this objection to jurisdiction was never taken in the first Court. It was not taken in the grounds of appeal to this Court, and indeed it was raised by the Court itself, and not by either of the parties. Under these circumstances, we may fairly set the order aside without costs.

Then an application was made to us by the Advocate-General to order the return of the petition presented to the lower Court, in order that it might be presented again to the Court which his jurisdiction. That is a matter with which we think we ought not to interfere. It should be dealt with by the lower Court.