Date of Judgment . 0 1. 2 0 0 6 .
Petitioner: Abdul Razzak through Ms. Mehrun Nisa, Advocate.
Respondent : Ms. Rahat Bano, through Mr.
Moazm Baig, Advocate.
MUNIB AHMED KHAN, J. C.M.A. No 64 of 2004 has been made under section 25(3) of Insolvency (Karachi Division) Act 1909 read with rule 624 of Sindh Chief Court Rules (OS). By the said application, the learned counsel has prayed that Protection Order dated 07.08.2002 may be revoked and Protection granted to the petitioner may be recalled.
Briefly, the petitioner has come to this Court for his declaration as insolvent under sections 6,9 and 10 of the Insolvency Act on the ground that he is in heavy debt, due to exparte decree for Rs.5,60,000/- and the petitioner is unable to pay the same, nor he has any business or means to pay that amount. Necessary formalities, after filing of the Petition, were completed by Additional Registrar and the petitioner was examined by the Official Assignee with permission of the Court, who has submitted that the petitioner is Insolvent, as he has no means except he is driving a school van, owned by his in-laws and from total earning of Rs.9,000/-, an amount of Rs.6000/- is being spent on vehicle while Rs.3000 are being used for household expenses. Initially a Protection Order dated 07.08.2002 was passed and it was ordered that the petitioner will not be arrested in execution No. 10 of 2000, filed by his wife Rahat Bano for recovery of decretal amount. After examination of the petitioner by Official Assignee, the petitioner moved an application under section 38 of the Act for his absolute discharge but by order dated 27.10.2003, it was dismissed on the ground that, as per requirement of section 39 (c) of the Act, absolute discharge cannot be granted unless four annas in a rupee has been paid to the creditor. The petitioner again filed review application but same was also dismissed by order dated 24.11.2003.
Now through CMA No. 647 of 2002, made under section 25(3) of the Act, the respondent has prayed for revocation of Protection Order dated 07.08.2002. The learned counsel for the respondent has argued that Insolvency Act is not applicable to the decretal amount and that the petitioner is earning and while he is maintaining his first wife, therefore, he should also maintain his second wife i.e respondent. He has also submitted that the petitioner has kept all his assets in benami, specially, in the name of his in-laws, otherwise he is moneyed man and he is under legal obligation as well as under Islamic obligation that he should maintain his second wife who has no means. He has stated that the petition has been filed with mala fide intention and may be dismissed or atleast Protection Order may be recalled, so the respondent may be in a position to press her Execution Application for recovery of the amount.
Learned counsel for the respondent has cited Soorat-ul-Nisaa, Ayat No.34, on the issue of maintenance of wife by husband as well as Soorat-ul-Talaq, Ayat No.7 and has urged that a Muslim is under obligation to maintain his wife. He has also referred Fatawa Alamgiri, volume II Page 598, Baillie page 441 and section 9 of the Family Law ordinance.
Besides Learned counsel has cited PLD 1974 Lah 495, PLD 1976 Lah 1466 and PLD 1973 (Notes) 18 Karachi. Through these authorities, Learned counsel has tried to prove that husband is bound to maintain wife in terms of section 9 of the Muslim Law ordinance 1961.
In PLD 1973 (Note) 18 Karachi it has been stated:
“Insolvency (Karachi Division and Dacca) Act III of 1909) Ss 25 & 45(I)(d) read with Muslim Family Laws Ordinance (VIII of 1961) s. 9 – Maintenance– Insolvency - Protection order under S. 25 of Act III of 1909 - cannot be extended to arrest and detention for failure to pay maintenance. ”
The above authority is based on AIR 1938 Allahabad Page 253, wherein it has been mentioned as follows:
“(b) Cr.P.C 1989, section 488-Mere fact that husband has been adjudicated Insolvent does not constitute sufficient cause for non-payment of maintenance”.
Reference has also been made by the Learned counsel to the authority 1940 B L R 742, Emperor v. Mohammad Hussain, Abdul Kadir Shaikh and Bhikan, wherefrom specifically the following para is referred.
“The protection order made u/s 25 of the Presidency-towns Insolvency Act 1909, does not protect the insolvent against the special statutory power of committal, given to criminal court under section 488 of the Criminal Procedure code 1898, to enforce an order to pay maintenance by levying the amount as fine and sentencing defaulter to suffer imprisonment”.
On the other hand learned counsel for the petitioner has stated that the petitioner has fulfilled all the legal requirements and has stood for the test of public examination. She has stated that even the petitioner was examined by the learned counsel for the respondent but nothing has been brought on record to show the means of petitioner, therefore, since the petitioner has fulfilled all legal requirements, therefore, the petitioner was given proper protection under section 25(i) of the Act. Learned counsel has also referred relevant section of Insolvency Act including section 9(4), 10, 11(A), 14, 25(2), 90 and section 107 and has urged that since the petitioner has been given Protection therefore, Protection Order cannot be recalled. She has further argued that under Insolvency Act, the Additional Registrar has power to adjudge the petitioner as Insolvent and in her case, the petitioner has been adjudged Insolvent by order of the Additional Registrar dated 02.08.2002 as that is final order under the Act. Therefore, the only remedy for the applicant is to go into appeal as no review is maintainable. She has further submitted that although absolute discharge has not been given to the petitioner but he is under protection order and is appearing before Official Assignee for his examination, as per High Court Rules.
The Learned counsel has even tried to argue on merits by urging that the respondent is not his wife and marriage was conducted by defrauding the petitioner, therefore, there is no legal sanctity in the marriage.
I have heard the arguments of the Learned counsel and after examining the Insolvency Act 1909, as well as Chapter XXXI of Sindh Chief Court Rules (OS), I am of the opinion that in the matter of any decision under Insolvency Act, reference to rules under Insolvency Act 1909, given under Chapter XXXI, is must. Relevant rule 553(ii) defining the Court is reproduced as under:
“553(ii) “Court” includes the Registrar when exercising the power of the Court pursuant to the Act or these rules”.
In the instant case, after filing of the Petition, the matter was placed in the Court and by order dated 01.08.2002, the Court has overruled the objection raised by the office in respect to non-submission of account books etc. and the Petition was entertained. On 02.08.2002, the petitioner was examined by Additional Registrar(OS-II) by exercising jurisdiction under Sindh Chief Court Rules (OS) and after examining the petitioner in detail, he passed following orders:
“02.08.2002:
Order of adjudication.
The debtor is present in person. Ms. Mehrun Nisa has identified him. His statement has been recorded. He is adjudged as Insolvent. He may be issued a certificate. He is directed to appear before the Official Assignee Karachi, as prescribed under rules.
Additional Registrar”.
After adjudication order the petitioner was also granted Protective Order by the Court on 07.8.2002. Thereafter, petitioner, in terms of Sindh Chief Court Rules (OS) has extensively been examined by the Official Assignee by way of public examination and counsel for the respondent/ Decree Holder has conducted cross-examination but nothing has been brought on record to prompt Official Assignee to submit reference contrary to order of adjudication or to protection order. The order of Additional Registrar, by which the petitioner was adjudged Insolvent, was appeal-able under section 8 (ii) of Insolvency Act. It is apparent that no appeal has been filed either against the order of Additional Registrar, passed on 02.08.2002, or against the Protective Order dated 07.08.2002, therefore, those orders cannot be reviewed under section 25(3) of the Insolvency Act or under rules 624 of Sindh Chief Court Rules (OS).
In the circumstances, I dismiss C.M.A. No. 647 of 2004 with no order as to costs.
J U D G E
Samie/