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Mantena Durgaraju Vs. Melam Pallam Raju and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 1787 of 1961
Judge
Reported inAIR1964AP50
ActsProvincial Insolvency Act, 1920 - Sections 68, 75(4) and 78(1); Limitation Act, 1908 - Sections 5; Code of Civil Procedure (CPC), 1908 - Sections 48
AppellantMantena Durgaraju
RespondentMelam Pallam Raju and ors.
Appellant AdvocateM. Venkatapathi Raju, Adv.
Respondent AdvocateB.S.R. Anjaneyulu, Adv.
Excerpt:
.....receiver - insolvent's representative filed a suit to set aside sale - petition filed beyond limitation period alongwith an application for condonation of delay -subordinate judge set aside sale condoning delay - auction purchaser preferred appeal against order - high court observed that subordinate judge condoned delay and set aside sale without any notice to official receiver - held, order against principle of natural justice. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has..........section 68 of the act to set aside the above mentioned sale. as this petition was filed beyond the period of limitation prescribed by the proviso to section 68 i.e., twenty-one days from the date of sale, they filed another application under section 5 of the limitation act, to condone the delay in presenting the petition. -3. the subordinate judge, without even ordering notice to the official receiver or the auction purchaser, condoned the delay and entertained the application for setting aside the sale. it is to revise this order that a revision petition was filed in this court by the auction-purchaser,4. the petition has been placed before a division bench, as jaganmohan reddy, j., who heard the matter in the first instance thought that some of the decisions cited by the learned.....
Judgment:

Chandra Reddy, C.J.

1. The problem that is posed in this revision case is whether Section 78(1) of the Provincial Insolvency Act (hereinafter referred to as the Act) governs the proviso to Section 68 of the Act.

2. The facts necessary for this enquiry are few and are not in dispute. The father of respondents 1 to 3 was adjudged an insolvent in I. P. No. 21 of 1952 on the file of the Subordinate Judge's Court, Narsapur. After the vesting orderwas made, the Official Receiver sold the onefourth, undivided share belonging to the insolvent in public auction on 28-2-1961 and the petitioner purchased that share. On 25-3-1961, respondents 1 to 3, the insolvent's children, filed I. A. nO. 181 of 1961 under Section 68 of the Act to set aside the above mentioned sale. As this petition was filed beyond the period of limitation prescribed by the proviso to Section 68 i.e., twenty-one days from the date of sale, they filed another application under Section 5 of the Limitation Act, to condone the delay in presenting the petition. -

3. The Subordinate Judge, without even ordering notice to the Official Receiver or the auction purchaser, condoned the delay and entertained the application for setting aside the sale. It is to revise this order that a revision petition was filed in this Court by the auction-purchaser,

4. The petition has been placed before a Division Bench, as Jaganmohan Reddy, J., who heard the matter in the first instance thought that some of the decisions cited by the learned counsel for thepetitioner in support of his contention that Section 5 of the Limitation Act was inapplicable to proviso to Section 68 did not specifically deal with that question and that, at any rate, they require re-consideration.

5. We are here mainly concerned with the impact of Section 78(1) on the proviso to Section 68 of the Act.

6. As the controversy that arises in this case has to be resolved with reference to the two statutory provisions, we have to quote them here. Section 68 runs as follows:

'If the insolvent or any of the creditors or any other person is aggrieved by any act or decision of the receiver, he may apply to the Court, and the Court may confirm, reverse or modify the act or decision complained of; and make such order as it thinks just;

Provided that no application under this section shall be entertained after the expiration of twenty one days from the date of the act or decision complained of.'

Section 78 is in these words:

'(1) The provisions of Sections 5 and 12 of the Indian Limitation Act, 1908, shall apply to appeals and applications under this Act, and for the purpose of the said Section 12, a decision under Section 4 shall be deemed to be a decree.' (2) x x x x x'

7. It is seen that Section 5 of the Limitation Act is specifically made applicable to all appeals and applications under the Provincial Insolvency Act. That being so, it is needless for us to consider whether Section 68 of the Act is a special provision and as such whether Section 29 of the Limitation Act is attracted to it or to resolve judicial conflict on this topic. It is also not disputed that an application under Section 68 comes within the purview of Section 78(1), though the marginal note describes the remedy provided by Section 68 as an appeal to Court against receiver'.

8. But the point presented by Sri Gangadhara Rao, learned counsel for the petitioner is that Section 78(1) could not be resorted to, as the proviso to Section 68 is couched in a mandatory language. The learned counsel urges that it is not competent for a Court to extend Section 5 of the Limitation Act to the proviso, having regard to the negative form in which it is expressed. He argues that when once the period of twenty-onedays expires, the application could not be taken cognizance of under any circumstances.

9. As substantiating his proposition, the learned counsel draws our attention to Section 75, Clause (4) of the Act, which postulates:

'The periods of limitation for appeals to the District Court and to the High Court under this Section shall be thirty days and ninety days respectively'.

The learned counsel maintains that the legislature thought of making a distinction between the two provisions in that while making a rule of limitation in Section 75(4), it enacted by the proviso to Section 68 an absolute prohibition against the enter-tainment of an application after the lapse of twentyOne days.

10. After a very careful consideration, we have come to the conclusion that the language of the proviso to Section 68 does not give full support to this contention. It is true that while Section 75(4) is in positive form, the proviso is expressed in negative language. But does this make a material difference in this-behalf? We feel that the difference in the form of the section is not intended to emphasise a distinction in substance. There is only difference in the manner of expression. They employed different language to convey the same thing namely a period of limitation. It is not the form of the rule that is determinative of the matter but it is the concept embodied in the statutory provision that decides the question. In this connection, we cannot ignore the fact that Section 75(4) is also in mandatory form. It says 'The periods of limitation ...... shall be thirty days ......'. In spiteof the positive form, could it be posited that if an appeal is preferred to the District Court or the-High Court after the lapse of thirty days or ninety days, as the case may be, it could be entertained without the aid of Section 5 of the Limitation Act? It is needless to say that such an application would not be taken cognizance of. So although, Section 78(4) is stated in a positive form, it is as effective as the one in the proviso to Section 68. We think that the proviso also contains a rule of limitation. Sri Gangadhara Rao is not prepared to go to the length of saying that ,it enacts a condition precedent to the receipt of an application. If it is not a condition precedent, it must be a period of limitation. We are not able to conceive of a middle course, i.e., something between a condition precedent and a period of limitation.

11. It may be mentioned here that the proviso to Section 68 is cast in a mould similar to tho one in Section 48, C. P. C. That section reads:

'(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from-

(a) the date of the decree sought to be executed or x x x x x

12. It is plain that the language employed in Section 48, C. P. C. is as imperative and mandatory as the one employed in the proviso to Section 68 of the Provincial, Insolvency Act. It is also couched in the negative language. Notwithstanding this, a Division Bench of the Madras High Court ruled in Gangjee Premjee and Co. v. O.I K.K.N. Firm, 63 Mad LJ 152: (AIR 1932.Mad352) that Section 48, C. P. C. contained a period of limitation and as such Section 15 of the Limitation Act was attracted to jt. This was followed by a Full Bench of the same High Court in Kanda-swami Pillai v. Kannappa Cbetty, : AIR1952Mad186 (FB). Having regard to the pronouncement of the Full Bench, it is needless to pursue the subject bearing on Section 48, C. P. C. Suffice it to say that so far as this Court is concerned, it is well settled that Section 48, C. P. C. embodies a rule of limitation. If that were so, we fail to see why the same considerations should not apply to the proviso in question. The concept of the proviso is similar to the one underlying Section 48, C. P. C. It follows that what is enshrined in the proviso is a period of limitation, and consequently, an application under Section 68 comes within the sweep and range of Section 78(1) of the Act.

13. We will now refer to some of the decided cases, which have taken the view that Section 5 of the Limitation Act is inapplicable to the proviso to Section 68. In Rajagopaiam v. Official Receiver, ILR (1957) Andh Pra 538: (AIR ,1958 Andh Pra 426) to which one of us was a party, it was decided that the inherent powers of a Court did not permit extension of Section 5 of the Limitation Act to the proviso to Section 68 of the Provincial Insolvency Act. There, it was stated that an application under Section 68 could not be entertained after twenty one days, as it was a mandatory provision which required the acts of a receiver to be questioned within twenty one days. The question that was posed there was whether the inherent jurisdiction of a Court could be availed of for invoking Section 5 of the Limitation Act. No reliance was placed on Section 78(1) of the Provincial Insolvency Act. There was, therefore, no occasion for the Court to deal with the question as presented before us now. It was in such a situation that it was decided that Section 68 could not be read in the light of Section 5 of the Limitation Act. Hence that decision is of no help. It cannot also be regarded as containing good law.'

14. The same may be said of the ruling of the Lahore High Court in Jai Kishan v. Chirag Din, AIR 1935 Lah 60 and of the Oudh High Court in Mt Hussaim v. Md. Zahir Abdi, AIR 1924 Oudh 294 The situations were exactly similar in those cases. There also, no reference was made to Section. 78(1) of the Provincial Insolvency Act and there was no discussion on the question of the applicability ct that Section to the proviso to Section 68. The argument in those cases turned on the inherent jurisdiction of the Court to condone the delay by resorting to Section 5_ of the Limitation Act. For these reasons, we think that these decisions also do not render much assistance in the context of the present enquiry.

15. It follows that the delay in filing an application under Section 68 could be condoned under Section 78(1), provided sufficient cause is shown therefor. No exception could be taken to the entertainment of the petition for the purpose of dealing with the question whether the delay could be condoned or not,-

16. But, that does not dispose of the matterhere. Indisputably, in this case, the trial Courthad not given notice either to the Official Receiveror the auction purchaser before it excused the dealy.Apart from everything else, we must say that theSubordinate Judge has violated the principle ofnatural justice contained in the maxim audialteram partem.

17. In the circumstances, we have to send back the case to the trial Court for disposal after notice to the receiver and the auction-purchaser and after hearing their objections. There will be no order as to costs in this Civil Revision Petition,


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