Full Judgment
White, J.
1. This is an appeal against an order of the Officiating Judge of Dacca, refusing an application, on behalf of Nubbi Buksh Bepari, to be declared an insolvent under Section 351 of the Code of Civil Procedure.
2. A preliminary objection is taken, that the appeal does not lie : first, on the ground that the order being one of refusal is not made under Section 351; and secondly, because, if made under that section, no appeal lies against an order of refusal, but only against an order granting the application.
3. Section 588, Clause 17, of the Code gives an appeal against an order under Section 351 in these words---'orders in insolvency matters under Section 351.' Now, as regards the first objection, I think that the order under appeal, although one of refusal, was made under Section 351. This is the only section under which the District Court can deal with an application by an insolvent judgment-debtor to be made an insolvent. Neither that section, nor any other section in the chapter, expressly authorises the Court to refuse the application ; but from the language of the 351st section, as well as from the nature of the case, it is obvious that the Court has such power, for Section 351 directs that the Court may, if satisfied as to certain particulars, declare the applicant to be an insolvent, which implies that, if not so satisfied, the Court may refuse the application. It appears to me to follow from these data that on order refusing an application is as much made under Section 351 as an order granting an application, unless the former order can be supposed to be made under no section of the Code, which could not, I apprehend, be seriously contended.
4. Taking the order to be made under Section 351, the second objection cannot, in my opinion, prevail against the natural meaning of the words used in Clouse 17 of Section 588. The words 'orders in insolvency matters under Section 351' are wide enough to embrace any order made under that section, whatever its nature may be; and an order made by a Court in the course of disposing of an application is not the less the order of the Court because it refuses the application. Where the Legislature intended to confine the right of appeal td one species of order, it has used clear and appropriate words, as for instance, in Clouse 27 of Section 588, where an appeal is only given in respect of orders of refusal under Section 558. This question has been the subject of decision by more than one Bench of this Court. In the earlier decision-Mumtaz Hossein v. Brij Mohun Thakoor (I. L. E., 4 Cal., 888)-the objection was disallowed. Mr. Justice JACKSON, who pronounced the judgment of the Court, says:- 'It appears to us that the term 'insolvency matter' is purposely wide so as to include any question arising out of the exercise of the functions entrusted to the Counts under the section specified.' That decision, and the reasons upon which it is founded, commend themselves to our judgment. The second decision was passed about a year and a quarter afterwards-Juggutjeebun Gooptoo v. Haro Coomar Pal (I. L. R., 5 Cal., 719). In this decision the objection prevailed, but I am unable to gather from the report the precise ground upon which it was allowed to do so. It is to be observed that the earlier decision of Mr. Justice JACKSON and Mr. Justice McDo NELL was not cited. Under these circumstances I think that we are at liberty to act upon that authority, which appears to us to be most in conformity with the true construction of Clouse 17, Section 588.
5. For these reasons, we are of opinion that an appeal lies to this Court against the order refusing to declare Nubbi Buksh an insolvent.
(The learned Judge then went into the evidence in the case, and dismissed the appeal on the merits).
Field, J.
6. In this case a preliminary objection has been made that no appeal will lie. In other words, it is contended that an order refusing to declare a person an insolvent does not come within the meaning of the words 'orders in insolvency matters under Section 351' in Clouse 17, Section 588 of the Code of Civil Procedure. Section 351 is as follows :- 'If the Court is satisfied that, &o.; . . . the Court may declare him ' (i.e., the applicant) ' to be an insolvent.' This section contains no express provision empowering the Court to refuse an application made by a judgment-debtor asking to be declared an insolvent, and I may add that no such express provision is to be found in any other section of the Code. The question then arises, under what section does the Court make an order refusing to declare a person to be an insolvent. That it has power to make this order there can be no doubt.
7. It appears to me that, although the provisions of Section 351, in their express language, empower the Court to make an affirmative order only, yet, necessary implication, they must be understood to give the Court the further power to make a negative order,- i. e., an order refusing to declare the applicant to be an insolvent; and that an order refusing to declare an applicant to be an insolvent is, therefore, made under Section 351. If Clouse 8 of Section 588, read with Section 103 of the Code,- Clouse 9 of Section 588, with Section 108,- Clouse 7 of Section 588, with Section 111 - Clouse 19 of Section 588. with Section 370,- Clouse 20 of Section 588 with Section 371,- Clouse 21 of Section 588, with Section 372, - and Clouse 27 of Section 588, with Section 558 and 560, - it will be abundantly manifest (more especially as regards Sections 371, 558, and 560) that orders refusing to grant applications under certain sections of the Code are understood to be made under those particular sections which expressly confer the power only of granting applications, and do not contain express words authorising the Court to make orders refusing such applications. I think further that this interpretation is supported by the construction put by their Lordships of the Privy Council upon the 76th section of the Registration Act in the case of Beasut Hossein v. Hadjee Abdoollah (L. E., 3 I. A., 221, at pp. 225, 226; s. c., I. L. R., 2 Cal., 131, at p. 137).
8. I concur in the judgment which has just been delivered on the merits.