Dave, J. - (1.) THIS is an appeal by some of the creditors of the respondent against the order of the learned District Judge, Bikaner, dated 19 10-57 adjudging the respondent as insolvent.
(2.) IT appears from the record of the lower court that an application for adjudication as an insolvent was filed by the debtor himself. IT was averred by him that he had incurred heavy loss in business and that his total debts amounted to Rs. 17,838/8/6, whereas his total assets did not exceed Rs. 4900/ -. Some of the creditors contested the application on the ground that the petitioner was not unable to pay off the debts. Their contention was, however, turned down by the learned Judge on the ground that the debtor having presented an application under sec. 10 of the Provincial Insolvency Act, he had committed an act of insolvency under sec. 6 (f) and therefore he was entitled to present the application. IT was further observed by that court that since his debts amounted to more than Rs. 500/-, his application was in order. Thus, the learned Judge dismissed the objection raised by the creditors and proceeded to pass an order of adjudication under sec. 27 of the said Ait. It is contended by learned counsel for the appellants that the learned Judge has proceeded in the matter very hastily and he never cared to enquire about the respondent's inability to pay oft" his debts. It is also contended that the learned Judge was wrong in holding that the respondent was entitled to present the petition because he had committed an act of insolvency under sec. 6 (f) of the Provincial Insolvency Act (which will hereinafter be referred as the Act ). I have given due consideration to these arguments and I entirely agree with the appellants' learned counsel that the learned Judge has fallen into error in holding that respondent was entitled to present the petition because he had committed an act of insolvency under sec. 6 (f) of the Act. It may be pointed out that the advantage of sec. 6 (f) may be taken only by a creditor if he presents an application under sec. 9 of the Act. A debtor cannot obviously urge that he has committed an act of insolvency by presenting an application for insolvency and therefore he is entitled to present the application. The question whether the debtor is entitled to present the petition should have been decided by the learned Judge by taking into consideration the condition laid down in sec. 10 and not by referring to sec. 6 of the Act. Learned counsel for the respondent has very candidly conceded that he is unable to support the view taken by the learned District Judge. It may be pointed out that the learned District Judge does not seem to have taken into consideration the provisions of sec. 24 (2) before passing the order under sec. 27 of the Act. Sec. 24 lays down that on the day fixed for the hearing of the petition, or on any subsequent day to which the hearing may be adjourned, the court shall require proof that the creditor or the debtor, whoever the applicant may be, is entitled to present the petition. Sub-sec. (2) of sec. 24 further provides that the court should also examine the debtor, if he is present, as to his conduct, dealings and property in the presence of such creditors as may appear at the hearing and the creditors shall have the right to question the debtor thereon. Then, sub-sec. (3) of sec. 24 further lays down that the court should, if sufficient cause is shown, grant time to the debtor or to any creditor to produce any evidence which appears to it to be necessary for the proper disposal of the petition. Now, in the present case, the appellants were stoutly contesting the respondent's right to present the application and they had also alleged that he was in possession of sufficient property to liquidate his debts. Under the circumstances, it was incumbent upon the court not only to examine the debtor but also to afford an opportunity to the creditors to question the debtor on the matters regarding his conduct, dealings and property. The court should have also given fair time to the parties to produce their evidence. It appears that the learned Judge proceeded, very hastily. The appeal is, therefore, allowed. The order of the learned District Judge, Bikaner, dated 19. 10. 57, is set aside. The case be sent back to him with direction to proceed in the matter according to law. In the circumstances of the case, the parties are left to bear their own Costs. . ;