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Lalchand Hatanchan Marwadi Vs. John Anotone D'souza (30.09.1946 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Reported inAIR1948Bom112
AppellantLalchand Hatanchan Marwadi
RespondentJohn Anotone D'souza
Excerpt:
- - it is a well established rule that in construing an act of the legislature a judge is not a mere automaton whose only duty is to give out what he considers to be the primary meaning of the language used. 484. it is obvious that any such rigid construction as the judgment-debtor is seeking to put on the words 'not proved' in the proviso to section 78 is bound to lead to consequences which may well be both irrational and unjust;.....execution now under appeal was brought more than three years from the date of the decree; but the decree-holder sought to bring it into time by reason of the provisions of section 78, provincial insolvency act, there having intervened an adjudication and an annulment. by the terms of the section, the creditor claimed himself to be within time. the section says that the period from the date of the order of adjudication to the date of the order of annulment shall be excluded for the purpose of execution, 'provided that nothing in this section shall apply to a suit or application in respect of a debt provable but not proved under this act.' the courts below have noticed that the judgment-debtor filed his debt in the insolvency proceedings and supported it by an affidavit as required by.....
Judgment:

Macklin, J.

1. The execution now under appeal was brought more than three years from the date of the decree; but the decree-holder sought to bring it into time by reason of the provisions of Section 78, Provincial Insolvency Act, there having intervened an adjudication and an annulment. By the terms of the section, the creditor claimed himself to be within time. The section says that the period from the date of the order of adjudication to the date of the order of annulment shall be excluded for the purpose of execution, 'provided that nothing in this section shall apply to a suit or application in respect of a debt provable but not proved under this Act.' The Courts below have noticed that the judgment-debtor filed his debt in the insolvency proceedings and supported it by an affidavit as required by Section 49 and Rule 3 under Section 49 of the Act; but the record of the insolvency proceedings does not suggest that the debt was held by the Insolvency Court to be proved, and on that ground they have held that the benefit of Section 78 cannot be given to the decree-holder. He now comes to this Court in appeal.

2. In effect the decision of the Courts below means that the words 'not proved' occurring in the proviso to Section 78 mean 'not proved for any reason and in any circurnstances whatever.' If this interpretation (which in this appeal the learned Advocate for the judgment-debtor fully supports) is correct, an order of annulment passed even after the expiry of the three years period in an intervening insolvency in which for no fault of the decree-holder the debt put forward by the decree-holder had not been proved would still have the result that the decree-holder would not be able to take out execution of his decree in respect of that particular debt, although throughout the period of the insolvency proceedings he had been prevented from taking any step other than putting forward his debt to realize his debt. It is a well established rule that in construing an Act of the Legislature a Judge is not a mere automaton whose only duty is to give out what he considers to be the primary meaning of the language used. He must always consider the effect of any construction which he is asked to put on the Act; and if he comes to the conclusion that a particular construction leads to a result which he considers irrational or unfair, he is entitled, and indeed bound, to assume that the Legislature did not intend such a construction to be adopted and to try to find some more rational meaning to which the words are sensible: see Emperor v. Somabhai Govindbhai 25 A.I.R. 1938 Bom. 484. It is obvious that any such rigid construction as the judgment-debtor is seeking to put on the words 'not proved' in the proviso to Section 78 is bound to lead to consequences which may well be both irrational and unjust; and it is our duty to avoid any such interpretation if we can possibly do so. In our view the words are capable of being limited to eases of debts failing to be proved either (a) because the decree-holder has not availed himself of the directions given in Sections 49 and 33, Provincial Insolvency Act, or has in some other way not done what he ought to do by way of proving his debt, or (b) because the Court has passed orders rejecting a debt put forward by a creditor or has definitely held such debt not to be proved. Any other interpretation must, we think, give rise to what is irrational or unjust. This view receives support from a remark of the Privy Council in 46 Bom. L. Govind Prasad v. Pawan Kumar rdships say that they have been shown no authority in support of the proposition that a debt can be said to be proved under the Act only if it is accepted or admitted by the Court. Their Lordships go on to say that 'provable' and 'proof' are words of technical import in the language of the law of insolvency:

A creditor proves his debt when he lodges a proof in the mode prescribed by the statute, i.e. by fulfilling the requirements laid down in Section 49 of the Act; and when he has done that, he has proved his debt within the meaning of the proviso to Section 78 (2): (p. 311).

We are of course bound by that decision even though their Lordships have not referred to the wording of Section 33 of the Act, which seems to suggest that something more is required than merely filing a debt upon affidavit before the debt can be said to be proved. But however that may be, it is undoubtedly wrong to do as the Courts below have done and treat the words 'not proved' occurring in the proviso as meaning 'not proved for any reason and in any circumstances whatever.'

3. On behalf of the judgment-debtor, it is argued that in this particular case the creditor has not fulfilled the requirements of Section 49 read with Rule 8 in that he has not filed his claim under form 7, which is what the rule says he must do. This however is an objection of form rather than of substance. It is true that the creditor's application in the Insolvency Court cannot be regarded as a translation of form 7; but in substance it does all that is required to be done by form 7, and it is clear that he cannot be criticised for any omission in this particular respect.

4. Partly because the words cannot reasonably be construed in the rigid sense adopted by the Courts below, and partly in view of the interpretation of the word 'proved' given by the Privy Council in the case which I have cited, we allow this appeal and direct that execution do proceed. The costs of the decree-holder in the two appeals will be paid by the judgment-debtor.


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