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Discharge the Insolvent.-A was declared an insolvent, and notice was given to B, a mortgagee of nine fields. B did not appear. This debt was not scheduled. A Receiver was appointed, who sold one out of the nine fields, and returned the other eight to the insolvent, who was discharged: Held, his discharge was no answer to a suit by the mortgagee for possession of the eight fields-Shridhar Narayan vs. Atmaram, I. L. R., 7 Bom., 455.
356. The Receiver shall proceed unDuty of Receiver.
der the direction of the Court(a) to convert the
money : (6) 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 His right to remu- performance of his duties a commission, neration.
to be fixed by the Court, not exceeding the rate of five per centum upon the amount of the balance
so distributed (the amount of the commisDelivery of surplus.
sion so retained being deemed a distribution), 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, (b) 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.
Convert the Property into Money.-When property is mortgaged, the Receiver can only sell the equity of redemption, unless he has paid the mortgage-debt or has the consent of the mortgagee-Shridhar vs. Krishnaji, I. L. R., 12 Bom., 273.
Commission.-A Receiver has a lien for his commission on the assets after payment of the charges specified in clauses (6), (c), and (d)-Mahadeva vs. Kuppusami, I. L. R., 15 Mad., 233. 357. An insolvent discharged under section 351 or 355
shall not be arrested or imprisoned on Effect of discharge.
account of any of the scheduled debts. But (subject to the provisions of section 358) his property, whether previously or subsequently acquired (except the particulars specified in the first proviso to section 266 and except the property vested in the Receiver), sball, by order of the Court, be liable to attachment and sale until the debts due to the scheduled creditors are satisfied to the extent of one-third, or until the expiry of twelve years from the date of the order of discharge under section 351 or 355.
Act VIII of 1859, section 282.
Arrested or Imprisoned. The protection from arrest is limited to judgmentdebts appearing in the schedule-Panna Lall vs. Kanhaiya, I. L. R., 16 Cal., 85.
Property.--The insolvent is not liable to be arrested on account of the scheduled debts, but his property may be attached and sold. See Janoke Singh Roy vs. Kallo Mundul, B. L. R., (F. B.,) 889; Venkatakrishna vs. Coelho, I. L. R., 6 Mad., 170. See also Haró Pria vs. Shama Charn, I. L. R., 16 Cal., 592. If the defendant has not been declared an insolvent, he cannot be discharged under this section, but under section 341. 358. If the aggregate amount of the scheduled debts
is two hundred rupees or a less Declaration that in.
sum, solvent is discharged the Court may, and in any case after the from liability.
scheduled debts have been 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.
Act VIII of 1859, section 282.
Consent Order.-Where opposition was withdrawn and petitioner was declared an insolvent by consent of parties, but the opposition was withdrawn on condition that he should pay Rs. 80 per month to a Receiver, it was held he had no claim to be discharged on paying one-third-Downes vs. Richmond, I. L. R., 5 Alla., 258.
359. Whenever, at the hearing under Procedure in case of dishonest applicant.
section 350, it is proved that the appli
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.
Act VIII of 1859, section 281.
Procedure. When a Judge proceeds under this section he does not re-try the questions of fact decided by him under section 350, ante, but acting on them must deal with the applicant in the manner described in this section-Kadir Bakhsh vs. Bhavani, I. L. R., 14 Alla., 145. 360. The Local Government may, by notification in
the official Gazette, invest any Court other Investment of other Courts with powers of than a District Court with the powers conDistrict Courts.
ferred on District Courts by sections 344 Transfer of cases.
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 344.
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.
The second paragraph has been inserted by Act VII of 1888, section 31, clause (3). See the following cases under the old section-In re Waller, I. L. R., 6 Mad., 430; see the case of Sethu vs. Venkatrama, I. L. R., 9 Mad., 112; Purbhudas vs. Chugun, Í. L. R., 8 Bom., 196 ; Narrasayya vs. Narasimma, I. L. R., 7 Mad., 510. See section 314, ante.
Appeal.-Where a case has been transferred to a Subordinate Judge and he acts under the last paragraph, the appeal lies to the District Judge and not to the High Court -Sitharama vs. Vythilinga, I. L. R., 12 Mad., 472.
District Court.--The Judicial Commissioner of Chota Nagpur is the District Court for Chota Nagpur, and a Deputy Commissioner cannot act under this section unless the case has been transferred to him-Joynarayan vs. Mudho, I. L. R., 16 Cal., 13.
360A. Nothing in this Chapter shall Inapplicability of this Chapter to Presi- apply to any Court having jurisdiction dency-towns.
within the liinits of the towns of Calcutta, Madras or Bombay.
This section has been inserted by Act VII of 1888, section 31 (d).
361. The death of a plaintiff or de
by party's death, if right fendant shall not cause the suit to abate if
the right to sue survives.
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.
Anderson vs. Martindale, 1 East., 497.
(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 sue does not survive, and the suit abates.
(d) A, a member of a Hindu joint family under the Mitakshara law, institutes a suit for partition of the family property. A dies, leaving B, a minor son, his heir. The right to sue survives to B, and the suit does not abate.
Act VIII of 1859, section 99; C. L. P. Act, section 136. This section applies to H. C. and P. S. C. C.
Before Decree. Illus. (a).-After judgment the action does not abate, but the benefit of the judgment goes to the legal representative of the person obtaining itMuhammad Husain vs. Khushalo, I. L. R., 9 Ålla., 131. See Davies vs. Anderson, W. N. (84), 94.
Illustration (d).-See the case of Padarath Singh vs. Raja Ram, I. L. R., 4 Alla., 235.
Cause of Action.-The cause of action means the right to bring the actionChandramohan Dutt vs. Biswambhur Laha, 1 B. L. R., 42. See “CAUSE OF ACTION," p. 82, ante.
Special Statutes.- By section 37, Act IX, 1872, " promises bind the representatives of the promissors in case of the death of such promissors before performance, unless a contrary intention appears from the contract," and in all such cases the cause of action will survive. By section 268, Act X, 1865, all demands whatsoever, and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators, except causes of action for defamation, assault as defined in the Penal Code, or other personal injuries not causing the death of the party, and except also cases where, after the death of the party, the relief sought could not be enjoyed, or granting it would be nugatory.
Illustrations : (a)-A collision takes place on a railway in consequence of some neglect or default of the officials, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without bringing any action. The cause of action does not survive. (6) A sues for a divorce. A dies. The cause of action does not survive to his representative."
Plaintiff.- Wherever a breach of contract or a tort has been committed in the lifetime of the deceased, his executor is entitled to maintain an action if it is shown on the face of the proceedings that an injury has accrued to the personal estate-Twycross vs. Grant, 4 C. P. D., 40; Benod vs. Sharat Chander, I. L. R., 8 Cal., 845; see also Pulling vs. The Great Eastern Ry. Co., 9 Q. B.D., 110 ; Hatchard v. Mege, 18 Q. B. D., 771. A, as reversioner, sued a Hindu widow to set aside some illegal acts done by her. B intervened, and claimed to be the next reversioner. The widow died during the suit : Held, the suit abated, and the dispute between A and B must be decided in a new suitRamjun vs. Mussammut Lachee, 1 Agra, 49.
Arbitration.-See Bowker v. Eikens, 15 C. D., 565.
Defendant Deceased. The only cases in which, apart from questions of breach of contract, express or implied, a remedy for a wrongful act can be pursued against the estate of a deceased person who has done the act, appear to us to be those in which property, or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his estate or moneys. In such cases, whatever the original form of the action, it is in substance brought to recover property, or its proceeds or value, and by amendment could be made such in form as well as in substance, in such cases the action, though arising out of a wrongful act, does not die with the person. The property, or the proceeds or value which, in the lifetime of the wrong-doer, would have been recovered from him, can be traced after his death to his assets, and recaptured by the rightful owner there. But it is not every wrongful act by which a wrong-doer indirectly benefits that falls under this head, if the benefit does not consist in the acquisition of property or its proceeds or value. Where there is nothing among the assets of the deceased that in law or in equity belongs to the plaintiff, and the damages which have been done to him are unliquidated and uncertain, the executors of a wrong-doer cannot be sued merely because it was worth the wrong-doer’s while to commit the act which is complained of, and an indirect benefit may have been reaped thereby-Phillips vs. Homfray, 24 C. D., 439, p. 454; and see Haridas vs. Ramdas, I. L. R., 13 Bom., 677. See also Peak vs. Gurney, L. R., 6 . L., 377.
Where one defendant ceased to have any interest in the suit before he died, it was held, that it might proceed against the other defendants, without his representatives, Moung Khine vs. Burn, 6 W. R., Ref., 2.
Possession of Land.--A suit for possession of land and mesne profits does not abate, because the land has been washed away-Unno Poorna Debia vs. Ram Lochun Ghose, 5 W. R., 227 ; or the defendant has died-Noboo Coomar Ghose vs. Rajah Indrodeb, W. R., Mis., 1861, p. 1.
Trusts.-The Judicature Rules (order 50, rule 1) declare that "an action shall not become abated by reason of the marriage, death or bankruptcy of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation or devolution of any estate or title pendente lite;" and it has been held that the words “survive or continue" mean survive or continue" in some person who is before the Court; and where a sole plaintiff in an action filed a liquidation petition under which a trustee was appointed and the trustee did not appear, the action was struck out of the list of cases-- Eldridge vs. Burgess, 7 C. D., 411 ; but where two trustees were appointed and one clected to go on, making the other a defendant, the action was allowed to proceed-Jackson vs. North-Eastern Railway Co., 5 C.D., 841; and where a sole petitioner died after an order made on the petition, the Court allowed the petition to be continued and carried on by the representatives of the petitioner-In re Atkin's Trust, 1 C. D., 82. 362. If there be more plaintiffs or defendants than one,
and any of them dies, and if the right to Procedure in case of
sue survives to the surviving plaintiff or death of one of several plaintiffs or defendants 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.
Act VIII of 1859, section 100. This section applies to H. C. and P. S. C. C.
The cause of action means “the right to bring the action.” Where A and B sued as joint owners for damages on account of trespass, and B died, the cause of action did not survive to A and the representatives of B, but only to A-Chandramohun Dutt vs. Biswambhur, 1 B. L. R., 42.
In a suit for possession of timber, one of the defendants who, in pursuance of an agreement, had given possession of the timber to a co-defendant, died. It was held that, as he had ceased to have any interest in the logs before his death, his representatives should not be made parties, and that the suit survived against the other defendants alone -Moung Khine vs. Burn, 6 W. R., Ref., 2.