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and shall hear the said decree-holder, the other creditors mentioned in the application, and the other persons (if any) alleging themselves to be creditors, in opposition to the judgment-debtor's discharge; aud may, if it thinks fit, grant time to the said decree-holder and other creditors or persons to adduce evidence showing that the judgment-debtor is not entitled to be declared an insolvent.
Declaration of insolvency and 351. If the Court is satisfied appointment of receiver.
(a) that the statements in the application are substantially true;
(b) that the judgment-debtor has not, with intent to defraud his creditors, concealed, transferred or removed any part of his property since the institufion of the suit in which was passed the decree in execution of which he was arrested or imprisoned, or the order of attachment was made, or at any subsequent time;
(c) that he has not, knowing himself to be unable to pay his debts in full, recklessly contracted debts or given an unfair preference to any of his creditors by any payment or disposition of his property;
(d) that he has not committed any other act of bad faith regarding the matter of the application,
the Court may declare him to be an insolvent, and may also, if it thinks fit, make an order appointing a Receiver of his property, or if it does not appoint such Receiver, may discharge the insolvent.
If the Court is not so satisfied, it shall make an order rejecting the application. 352. The creditors mentioned in the application, and the other persons
(if any) alleging themselves to be creditors Creditors to prove their debts.
of the insolvent, shall then produce evidence of the amount and particulars of their respective pecuniary claims against him; and the Court shall by order determine the persons who have
S. 351.-An appeal lies from orders under this section. See S. 588 (17); and see also I. L. R., XI. Mad., 136, where the order releasing a judgment-debtor was set aside as no notice had been given to the creditor.
The onus probandi lies on the applicant. I. L R., IV. Calc., 888.
The Judge cannot refuse to declare the applicant an insolvent unless he finds that the applicant has brought himself within the penal clauses of S. 351. I. L. R., XIV. Calc., 691.
As to what amounts to an unfair preference, see P. J., 1887, p. 244.
Where a Judge appoints a Receiver, sections 351 and 355, read together, show that he cannot discharge the insolvent until the Receiver has made his report. P.J., 1887, p. 79.
S. 352.-An appeal lies from orders under this section. See S. 588 (17).
A person mentioned in the application, but not scheduled under S. 352, and pot coming in under S. 353, is barred from suing for his debt. P.J., 1882, p. 89. This, however, does not apply to a mortgagee, whoso position is essentially different from that of an unsecured creditor. I. L. R., VII, Bom., 455.
proved themselves to be the insolvent's creditors and their respective
debts; and shall frame a schedule(a) of such Schedule to be framed.
persons and debts; and the declaration under section 351 shall be deemed to be a decree in favour of each of the said creditors for their said respective debts.
A copy of every such schedule shall be stuck up in the court-house.
Nothing in this section shall be deemed to entitle a partner in an insolvent-firm or, when he has died before the insolvency, his legal representative, to prove in competition with the creditors of the firm. 353. Any creditor of the insolvent who is not mentioned in such
schedule may apply to the Court for permisApplications by unscheduled creditors.
sion to produce evidence of the amount and
particulars of his pecuniary claims against the insolvent, and, in case the applicant proves himself to be a creditor of the insolvent, for an order directing his name to be inserted in the schedule as a creditor for the debt so proved.
Any creditor mentioned in the schedule may apply to the Court for an order altering the schedule so far as regards the amount, nature or particulars of his own debt, or to strike out the name of another creditor, or to alter the schedule so far as regards the amount, nature or particulars of the debt of another creditor.
In the case of any application under this section, the Court, after causing such notices as it thinks fit to be served, at the applicant's expense, on the insolvent and the other creditors, and hearing their objections, if any, may comply with or reject the application. 354. Every order under section 351 shall be published in the local official
Gazette, and every order under that section Effect of order appointing appointing a Receiver shall operate to vest in Receiver.
the Receiver all the insolvent's property (except the particulars specified in the first proviso to section 266), whether set forth in his application or not.
355. The Receiver so appointed shall give such security as the Court Receiver to give security and may direct and shall possess himself of all collect assets.
such property, except as aforesaid;
S. 352(a).—It is open to a creditor mentioned in the application, at any time wbile the assets are andistributed, to produce evidence of his debt and apply to be admitted on the schedule. I. L. R., XI. Mad., 1.
S. 353.--The application by the creditor must be made within ninety days from the date of the publication of the schedule. Act XV. of 1877, Sch. II., Art. 174,
An appeal lies from orders under this section. See S. 588 (17).
and on his certifying that the insolvent has placed him in possession
thereof, or has done everything in his power Discharge of insolvent.
for that purpose, the Court may discharge(a) the insolvent upon such conditions (if any) as the Court thinks fit.
356. The Receiver shall proceed under Duty of Receiver.
the direction of the Court(a) to convert the property into money :
(ó) to pay thereout debts, fines and penalties (if any) due by the insolvent to Government:
(c) to pay the said decree-holder's costs :
(d) to discharge according to their respective priorities, all debts secured by mortgage of the insolvent's property :
(e) to distribute the balance among the scheduled creditors rateably according to the amounts of their respective debts and without any preference, and such Receiver may retain as a remuneration for the performance
of his duties a commission, to be fixed by the His right to remuneration.
Court, not exceeding the rate of five per centum upon the amount of the balance so distributed (the amount of the
commission so retained being deemed a distriDelivery of surplus.
bution), and shall deliver the surplus, if any, to the insolvent or his legal representative :
Provided that, in any local area in which a declaration has been made under section 320 and is in force, no sale of immoveable property paying revenue to Government or held or let for agricultural purposes shall be made by the Receiver; but, after he has sold the other property of the insolvent, the Court shall ascertain (a) the amount required to satisfy the claims of the scheduled creditors after deducting the moneys already received, (6) the immoveable property of the insolvent remaining unsold, and (c) the incumbrances, if any, existing thereon, and shall forward a statement to the Collector containing the particulars aforesaid; and thereupon the Collector shall proceed to raise the amount so required by the exercise of such of the powers conferred on him by sections 322 to 325 both inclusive, as he thinks fit, and subject to the provisions of those sections so far as they may be applicable; and shall hold at the disposal of the Court all sums that may come to his hands by such exercise. 357. An insolvent discharged under section 351 or 355 shall not be
arrested or imprisoned on account of any of Effect of discharge.
the scheduled debts. But (subject to the proS. 355(a).—The discharge does not affect a mortgage debt. A Receiver is bound, as a condition of dealing with mortgaged property, in every case to pay off the mortgage, even when the mortgagee has not sought to be placed in the schedule. I. L. R., VII. Bom., 455.
S. 356.--Mortgaged property cannot be sold by a Receiver without the consent of the mortgagee or paying him off. I. L. R., XII. Bom., 272. 357.-An appeal lies from orders under this section. Ses S. 588 (17).
visions of section 358) his property, whether previously or subsequently
rupees or a loss sum, the Court may, and in Declaration that insolvent is
any case after the scheduled debts have been discharged from liability.
satisfied to the extent of one-third, or after the expiry of twelve years from the order of discharge, the Court shall, declare the insolvent discharged as aforesaid absolved from further liability in respect of such debts.
Procedure in case of dishonest 359. Whenever, at the hearing under applicant.
section 350, it is proved that the applicant has (a) been guilty, in his application, of any concealment or of wilfully making any false statement as to the debts due by him, or respecting the property belonging to him, whether in possession or in expectancy, or held for him in trust;
(6) fraudulently concealed, transferred or removed any property ; or
(c) committed any other act of bad faith regarding the matter of the application,
the Court shall, at the instance of any of his creditors, sentence him by order in writing to imprisonment for a term which may extend to one year from the date of committal.
Or the Court may, if it think fit, send him to the Magistrate to be dealt with according to law,
i Bom dij to, dat 360. The Local Government may, by notification in the official Gazette, Rawa Quintis invest any Court other than a District Court
MI A 40678 Investment of other Courts
with the powers conferred on District Courts with powers of District Courts. Transfer of cases.
by sections 344 to 359 (both inclusive), and
the District Judge may transfer to any Court situate in his district and so invested any case instituted under section 314.
A Court so invested may entertain an application under section 344 by any person who has been arrested or imprisoned, or against whose property an order of attachment has been made, in execution of a decree for money passed by that Court.
8. 359, para. 2.—The imprisoument may be of either description, as defined in the Indian Penal Code. See cl. (18) of S. 2 of Act I. of 1868.
S. 360 is printed as amended by $. 3 of Act XIV. of 1885 and S. 31, of Act VII. of 1888.
All Courts of Subordinate Judges are invested with the powers referred to (G. G. 1877, p. 998). So also are the Courts of Small Causes at Karachi (16. 1879, p. 894), Surat and Broach (Ib., p. 975).
1 Sex 38r39 Pi.c77620. Is
360A. Nothing in this chapter shall Inapplicability of this chapter apply to any Court having jurisdiction within to Presidency towns.
the limits of the town of Calcutta, Madras er
361. The death of a plaintiff or defendNo abatement by party's death,
ant shall not cause the suit to abate if the if right to sue survives.
right to sue survives.
Illustrations. (a) A covenants with B and C to pay an annuity to B during C's life. B and C sue A to compel payment. B dies before the decree : the right to sue survives to C, and the suit does not abate.
(6) In the same case, all the parties die before decree. The right to sue survives to the representative of the survivor of B and C, and he may continue the suit against A's representative:
(c) A sues B for libel. A dies. The right to sne does not survive, and the suit abates.
(d) A, a member of a Hindu joint family under the Mitákshará law, institutes a suit for partition of the family property. A dies leaving B, a minor son, his heir. The right to sue mrviving plaintiff or plaintify or gainot the survives to B, and the suit does not abate.
362. If there be more plaintiffs or defend. Procedure in case of death of
ants than one, and any of them dies, and if the one of several plaintiffs or defendants, if right to sue survives. right to sue survives to the surviving plaintiff
or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. 363. If there are more plaintiffs than one, and any of them dies, and
if the right to sue does not survive to the Procedure where one of several surviving plaintiff or plaintiffs alone, but surplaintiffs dies and right to sue vives to him or them and the legal represendoes not survive to surviving plaintiffs alone.
tative of the deceased plaintiff jointly, the
Court may cause the legal representative, if any, of the deceased plaintiff to be made a party, and shall thereupon cause an entry to that effect to be made on the record and proceed with the suit.
8. 360A is inserted by S. 31' of Act VII. of 1888.
S. 363.—This section is substituted for sections 363 and 364 of Act XIV. of 1882 by S. 32 of Act VII. of 1888,