GURBUX SINGH INDER SINGH Vs. BRIJ LAL CHIRANJI LAL AND ORS.

JUDGEMENT

(1.) THIS revision petition arises out of execution proceedings. A decree for Rs. 551/12/ - was passed against Gurbakash Singh in favour of Raunaq Ram. In execution proceedings the judgment debtor came forward with the objection that since he had obtained an order of discharge in insolvency proceedings and the decree -holder's debt was provable under those proceedings, the decree passed against him was a nullity and accordingly it could not be executed. The trial Sub -Judge overruled the objections, and the judgment -debtor's appeal to the District Judge also failed. He has now come to this Court on the revision side.

(2.) IT is stressed by the Petitioner's counsel that by virtue of Section 44, Insolvency Act, when an insolvent has once obtained a discharge order all the debts provable against him in those proceedings are wiped off with the result that no liability against him for those debts remains. He further contends that the liability regarding the debts having been wiped off altogether by Section 44, the decree passed against the Petitioner in contravention of the provisions of Section 44 must be entirely ignored. In my opinion, the argument suffers from a fallacy. It is no doubt correct that the provisions of Section 44, Insolvency Act are mandatory and when a discharge order is made all debts provable under the insolvency proceedings in a way cease to exist, but this doss not make the decree against the Petitioner altogether void. It appears from the judgment of the Sub -Judge who passed the decree that the Petitioner pleaded that be had been discharged and accordingly no decree against him could be passed in respect of the debt in suit but the trial Sub -Judge did not accept his contention and passed the decree notwithstanding the discharge order. Now it is well recognised that when the Court has jurisdiction to decide a matter it has jurisdiction to decide it wrongly or rightly. I am prepared to concede that the decision of the Sub -Judge in that case was contrary to the provisions of Section 44 and was erroneous but the remedy for the Petitioner was to have it Bet aside by way of appeal and be could not ask the executing Court to treat the decree as if it did not exist at all. There are any number of authorities on this point; but it is sufficient for purposes of this petition to refer to Har Kishan Dass v. Sat Gur Parshad : A.I.R. 1938 P.C. 98 : 32 S.L.R. 401 where it was held that:

(3.) THE result is that the petition fails and is dismissed with costs.