lowest rate charged in the same Court for serving processes. The law does not provide for the supply of clothing to a judgment-debtor in jail at the expense of the detaining creditor. Ordinarily, judgment-debtors do not require to be so supplied; but in cases where it is found that a defendant arrested or committed to prison in execution of a decree is insufficiently clothed, the Court shall call upon the plaintiff to show that the defendant is possessed of additional clothing, which he intentionally conceals, or else to provide clothing for the debtor's use while in prison. If the plaintiff should fail to do either, the Court may direct the debtor to be set at liberty. In the event of the judgment-creditor providing clothing, the cost may be recovered in the manner prescribed in sec, 340 for the recovery of subsistence allowance, The provisions of secs. 344 to 347, 351 and 359 should be carefully explained to persons committed to prison, in Urdu and Hindi, and should be suspended in every ward. Panj. C. O.. I. 46.

(i) The Court must have the prisoner before them to exercise their discretion upon a matter which must be determined before

he can be formally committed to prison, and which may be so determined as to entitle him to be discharged. A jailor or other officercannot lawfully receive a prisoner for debt under commitment, unless the preliminary payment of subsistence have been made in compliance with the order of the Court; nor can he lawfully detain a judgment-debtor when the time limited for payment of any subsistence-money under the order of the Court passes without due payment accordingly. The warrant empowers the Sheriff only to arrest the defendant in execution, and detain him for such reasonable time as is sufficient to allow of his being brought before the Court, and having an oppor tunity of applying for his discharge; detention of such prisoner by the Sheriff after such reasonable time, without further authority of law, is illegal. In re Sumboo Chunder Haldar, a prisoner for debt in the Jail of Calcutta, Bourke's Rep., O. C., 59.

On failure of subsistence-money, the prisoner should be released, and further deten. tion of him by the person in whose cus tody he is, is illegal. J. L. Khan Speyer v. Johan Janssen, Bourke's Rep. O. C., 28.

Two General Rulings on Decrees.

The only questions that can properly arise in the execution of a decree are (1) as to the contents of the order made, (2) as to the jurisdiction to make it, and (3) as to how it has been carried out. Sukharam Ramchund R. A. v. Govind Vaman, Bem. H. C. R., 1873, 365,

A person claiming to be the assignee of a decree must apply for recognition of his title to the Court which passed the decree, and not to a Court to which such decree has been transmitted for execution. Framji Rustamji v. Ratanska Pestonji ib. IX. 49.

CHAPTER XX.

Qui non habet in ære luat in corpore.

ANY person arrested or imprisoned for a money decree may apply in writing to be declared an insolvent to District Court, which (or whose subordinate Court) ordered his arrest. Contents of the application are set forth in sec. 346. It must be subscribed and verified as plaints. A day will be fixed for hearing, and copy of application, with written notice of time and place of hearing, will be (1) stuck up in Court, (2) served at applicant's expense on arresting decree-holder or his pleader, and other creditors mentioned in application, (3) if Court think fit, published, at applicant's expense, in gazettes and public newspapers, and (4) on any person alleging himself to be acreditor, and applying to be heard. Meanwhile the applicant, if under arrest, may be immediately committed to jail, or left in custody of arresting officer.

On the day of hearing, the applicant is to be examined in presence of all persons, or their pleaders, on whom notices were served as to his (1) present circumstances, and (2) future means of payment.

The decree-holder, creditors, and persons alleging themselves to be creditors, will be heard in opposition, and, if necessary, time given them to show that applicant is not entitled to be declared insolvent.

If Court is satisfied that applicant (1) has made a substantially true application, (2) not concealed or alienated, with intent to defraud creditors, any property since institution of suit in which present decree was passed, (3) not recklessly contracted debts

*See p. 231.

or imprisonment, as the case may be, upon such conditions
(if any) as the Court thinks fit.

356. The receiver shall proceed under the direction
Duty of receiver.
of the Court--

(a) to convert the property into money:

(b) 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 distribute the balance among the scheduled creditors rateably according to the amounts of their respective debts, and without any preference;

His right to remuneration.

and such receiver may retain as a remuneration for the performance of his duties a commission, 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 commission so retained being deemed a distribution), and shall deliver the Delievery of surplue. surplus, if any, to the insolvent or

his legal representative.

357. (282) An insolvent discharged under section 355 shall not be arrested or imprisoned Effect of discharge. on 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), shall, by order of the Court, be liable to attachment and sale until the decrees against him held by the scheduled creditors are fully satisfied or become incapable of being executed.

358. (282) If the

When Court may declare insolvent absolved from further liability.

aggregate amount of the scheduled debts is two hundred rupees or a less sum, the Court may declare the insolvent discharged as aforesaid absolved from further liability in

respect of such debts.

359. (275, 281,) Whenever, at the hearing under section 350, it is proved that the applicant* (1) has.

Procedure in case of dishonest applicant.

(a) been guilty, in his application, of any conceal- ment 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;

(b) fraudulently concealed, transferred or removed any property; or

(c) committed any other act of bad faith regarding the matter of the application,

229

or given unfair preference to any creditor, (5) committed no other act of bad faith
concerning application, Court my declare him insolvent, appoint receiver of his pro-
perty, or discharge him. All creditors must produce evidence of amount and particulars
of claims. The Court shall frame schedule of persons who have proved themselves credi-
Thereupon the declaration of insolvency shall be a decree in
tors, and their debts.
favour of each creditor for his debt. Copy of schedule to be stuck up in Court-house.
(Neither partner in an insolvent firm nor his legal representative are hereby entitled to
prove in competition with creditors of the firm).

Within three months of publication, any creditor not mentioned in schedule may ask permission to prove amount and particulars of his claims, and, if successful, will be inserted as a creditor for the debt proved.

Within the same time creditors in the schedule may apply for order altering sche dule, as regards amount, nature, or particulars of his own or another creditor's debt. Notices will be served, at applicant's expense, on insolvent and other creditors; and after hearing them, the application will be complied with or rejected. All orders of insolvency must be published in local Gazette, and shall cause to vest in receiver all insolvent's property (except such things as are not liable to attachment, see sec. 266), whether mentioned in his application or not.

The receiver must give security as Court may direct, and possess himself of all such property. On his certifying that insolvent has done all in his power to place him in such possession, Court may release insolvent on such conditions as it thinks fit. The receiver, under Court's directions, shall (1) convert the property into money; (2) pay therefrom eveything due by insolvent to Government; (3) pay arresting decree-holder's costs; (4) distribute balance rateably among scheduled creditors according to their debts, and without any preference; and may remunerate himself by commission (fixed by Court) not exceeding five per cent. from the amount distributed, inclusive of his commission, and shall deliver any surplus to insolvent or his legal representative.

Such release precludes a second arrest or imprisonment on account of any scheduled debt, (and if the whole of the debts be Rs. 200 or under, Court may declare insolvent absolved from further liability in their respect). But insolvents property, previously or subsequently acquired, except what is not liable to attachment, and what is vested in receiver, shall, by Court's order, be liable to attachment and sale until scheduled creditor's debts are fully satisfied, or become incapable of execution.

If at hearing it be proved that applicant has been guilty of any bad faith, Court shall, at instance of any of his creditors, commit him to prison for any term up to one year, or send him to Magistrate. Local Government can vest other Courts with powers of District Courts, and then District Judge may transfer to any such Court in Such Courts can also then entertain any such application his district insolvency cases. by any person arrested in execution of their decrees.

(j) See page 225.

The discretionary power to detain defen-
dant in custody, and not send him to
prison, is confined to proceedings under
this section. Shaik Rauton v. Ibrahim
Rauton, M. H. C. I., 441.

(k) An insolvent debtor in the mufassil may
assign all his property to trustees for the
benefit of the creditors who may assent
to the conditions of the assignment;
and such an assignment will be valid,
although it may operate to defeat an
expected execution, if it be the intention
of the assignor to confer on the assent-
ing creditors a substantial interest in
the property assigned, and not merely
to defeat or hinder a judgment-credi-

tor.

Such an assignment may be made to trus-
tees; but it is not requisite that it should
be made to trustees; and it is not requi-
site that it should be made directly to
the assenting creditors. It will confer

on the trustees a title to the property
assigned superior to that of a judgment-
creditor, who has obtained an order for
attachment subsequently to the assign.

ment.

It is not invalid if made subject to a condition requiring assenting creditors to execute a release of the debtor, nor is it invalid if it declares a resulting trust in favor of the debtor: but, semble, that the Court might order such resulting trust to be executed for the benefit of judgment-creditors who decline to assent to the assignment.

tees to permit the debtor to retain such Nor is it invalid if it empowers the trusportion of his furniture, linen, &c., as they may think fit; but this power should be exercised only when the other assets are insufficient to discharge the primary objects of the trust.

Nor is it invalid if it contain a power for the trustees to continue the business, if

i

* See p. 233.

the Court shall, at the instance of any of his creditors, sentence him 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. 360. The Local Government may, by notification in the official Gazette, invest any Court other than a District Court with the powers conferred on District Courts by sections 344 to 359

Investment of other
Courts with powers of
District Courts.

(both inclusive), and the District Judge may transfer to any Court situate in his district and so invested any case instituted under section 344.

Transfer of cases.

Any Court so invested may entertain any application under section 344 by any person arrested in execution of a decree of such Court.

PART II.

OF INCIDENTAL PROCEEDINGS.

CHAPTER XXI.

OF THE DEATH, MARRIAGE, AND INSOLVENCY OF PARTIES.

No abatement by party's

M. 361. (99) The death of a death, if cause of action plaintiff or defendant shall not cause the suit to abate if the cause of action survives.*(m)

survive.

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 cause of action survives to C, and the suit does not abate.

(b) In the same case, all the parties die before decree. The cause of action 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 cause of action 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 cause of action survives to B, and the suit does not abate.

M, 362. (100) If there be more plaintiffs or defendants Proceeding in case of than one, and any of them dies, death of one of several and if the cause of action survives plaintiffs or defendants, if to the surviving plaintiff or plaincause of action survive. tiffs 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.