Lachmi Narain Dube vs Kishan Lal and Another

Pramada Charan Banerji and Piggott, JJ.—This is an appeal by one Lachmi Narain Dube, who had applied to the court of the Subordinate Judge exercising jurisdiction in the district of Mirzapur to be adjudicated an insolvent. The application was opposed by a creditor; the court had examined the applicant and had taken certain evidence offered by the objecting creditor. The hearing was then adjourned for reasons which need not be discussed, and it continued to be adjourned over a number of successive dates fixed for the hearing. Finally, on the 31st of October, 1917, the case being called on, it was found that the applicant did not appear. The court, thereupon, passed the following order:-

Applicant is absent. The application is dismissed for want of prosecution.

It seems to us that this order is not justified either by the circumstances of the case or by the provisions of the Provincial Insolvency Act, No. III of 1907. The debtor''s petition had alleged facts sufficient, if established, to entitle him to present his petition u/s 6, Clause 3, of the said Act. After completing the necessary inquiries, the duty laid upon the court was to come to a decision in respect of the various matters spoken of in Section 15 of the said Act and then either to dismiss the petition under the provisions of that section, or else to make an order of adjudication. On this point the words of Section 16 (1) of the Act are clear and mandatory. We, therefore, allow this appeal and set aside the order of the court below. We return the record to that court wish orders to re-admit it on to its file of pending applications and to dispose of it according to law. The appeal is not oppose and there is no necessity for us to make any order as to costs.