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Chhotubhai Bhimbhai Vs. Dajibhai Ukabhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 172 of 1922
Judge
Reported inAIR1924Bom472; (1924)26BOMLR432
AppellantChhotubhai Bhimbhai
RespondentDajibhai Ukabhai
DispositionAppeal dismissed
Excerpt:
.....a certain time. -..........closed on april 24, 1921, for vacation, the petition which was returned during the vacation was re-presented on june 6, 1921, with the necessary deposit.2. it is suggested now that the petition was presented on june 6, that is to say, more than three months after the alleged act of insolvency. the judge, after discussing the provisions of sections 9 and 54 of the act and section 10 of the general clauses act, held that the petition was presented within the proscribed time. further he said:--besides, i would, if necessary, treat the first presentation valid as it was not absolutely necessary to return the petition. i may mention that the order for the return of the petition was made by me in chambers in the absence of the petitioner's pleader, and i would not have made it if i had.....
Judgment:

Norman Macleod, Kt., C.J.

1. One Dajibhai Ukabhai presented a petition that Manibhai should be adjudicated insolvent. The petition was opposed by another creditor in whose favour Manibhai had executed certain mortgage bonds. The petitioner alleged that these mortgage bonds had been executed in order to defeat or delay Manibhai's creditors. An order of adjudication was passed on the petition. Chhotubhai has filed an appeal against that order, but he has not made the insolvent a party to the appeal. Consequently the appeal is not competent. Even if it were, there is no ground for reversing the decision of the Court below as the petition was presented within three months of the alleged act of insolvency. Under Rule 27(4) framed by the High Court under the Provincial Insolvency Act, the petitioner had to deposit Rs. 150. The petition was returned to the petitioner in order that it might be presented with the necessary deposit. As the Court was closed on April 24, 1921, for vacation, the petition which was returned during the vacation was re-presented on June 6, 1921, with the necessary deposit.

2. It is suggested now that the petition was presented on June 6, that is to say, more than three months after the alleged act of insolvency. The Judge, after discussing the provisions of Sections 9 and 54 of the Act and Section 10 of the General Clauses Act, held that the petition was presented within the proscribed time. Further he said:--

Besides, I would, if necessary, treat the first presentation valid as it was not absolutely necessary to return the petition. I may mention that the order for the return of the petition was made by me in Chambers in the absence of the petitioner's pleader, and I would not have made it if I had foreseen that it would lead to the present difficulty.

3. The petition should not have been returned. The petitioner or his pleader should have been told to make the deposit ordered by the rules within a certain time, and then if the rules were not complied with, the petition might have been dismissed. In any event this appeal must be dismissed with costs.


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