P.L.P.L. Palaniappa Chetti vs V.S.S.P. Subramania Chetti and Others

This is an appeal against the order of the District Judge of Ramnad dismissing an application presented by the appellant before us u/s 43 of the

Provincial Insolvency Act.

A preliminary objection was taken by Mr. Krishnaswami Aiyar that the appellant is not a "" person ''aggrieved'' within the meaning of Section 46

of the Provincial"" Insolvency Act and therefore that this appeal does not lie. He cited Iyappa Nainar v. Manicka Asari ILR (1917) Mad. 630

which is a decision directly in point. Some of the reasons given by the learned Judges in that case do not commend themselves to us, but we think

that the conclusion of the learned Judges, is right. Section 43 of the Provincial Insolvency Act which enables the Court to call upon the insolvent to

produce his books and to give inventories of his properties etc., was intended to facilitate the work of the Court in finally adjudicating upon the

extent of the properties which are to be distributed among the various creditors. By the failure of the insolvent to produce his books etc., it is the

Court that is aggrieved. It is true, as was contended by Mr. Patanjali Sastri, that the creditor is undoubtedly interested in seeing that the books are

produced and that the proper inventory is taken. That is the reason why he is given the privilege of setting the Court in motion. If the language of

Section 13 is compared with that of Section 43 to which Mr. Krishnaswami Aiyar drew our attention the position is fairly clear. The language of

Section 13 is ""the Court may either of its own motion or on the application of any creditor, make one or more of the following orders"" etc., there is

no corresponding provision in Section 43 which entitles the creditor to set the Court in motion. No doubt, ordinarily, the Court which has other

duties to perform, should not be expected to suo motu make enquiries of the kind mentioned in Section 43. On that account, the Court would avail

itself of any assistance that may be given to it by the creditor who brings to its notice the delinquencies of the debtor but that would not give a right

to the creditor to say that the debtor must be committed to jail and that by not sending him to jail, he is in any way aggrieved. We think that as was

pointed out in Tiruvenkatachariar v. Tangiyammal ILR (1915) Mad. 479 and in L.A.L. Alagappa Chettiar Vs. Naganatha Mudaliar and Others,

the correct definition of the expression ""person aggrieved"" is that given in Exparte Sidebottam: In re Sidebottam (1880) 14 Ch. D. 458. Mr.

Patanjali Sastri contended that in the present case the creditor whose application was refused would come within the definition as given by Lord

Justice James. He particularly drew our attention to this language in that definition, namely a person who has suffered a legal grievance or who has

been wrongfully refused something. The word "" wrongfully"" indicates that the there is a right which has been violated; and as we pointed out at the

outset a creditor has no right to set the Court in motion although the Court may avail itself of the assistance which he may render. We are in

agreement with the statement of the law as laid down in Ladu Ram v. Mahabir Prasad ILR (1916) All. 171 wherein it is pointed out that the duties

imposed by the provisions contained in Section 43 are of a disciplinary character and that the person, if any, who is really aggrieved is the court to

whom proper assistance has not been rendered by the debtor and not any person who sets the Court in motion. We express no opinion on the

merits of this case as the matter has not been argued before us.

The preliminary objection that there is no appeal to this Court must be upheld and the appeal rejected with costs.