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Pt. Madho Prasad Vyas Vs. B. Madho Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All230; 145Ind.Cas.668
AppellantPt. Madho Prasad Vyas
RespondentB. Madho Prasad
Excerpt:
- .....if the annulment of the adjudication be not automatic, then the court must always have power to extend time even after the expiry of the original period. in this court two learned judges have held in hari ram v. krishan ram : air1927all418 , that there is no automatic annulment of an adjudication. if this view be correct then the power of the court to extend time after the expiry of the original period does exist. the view which we are taking is amply supported by authorities of other courts, namely, a.j.e. abraham v. h.b. sookias : air1924cal777 , gopal ram v. magni ram a.i.r 1928 pat 338 and palani goundan v. official receiver, coimbatore a.i.r. 1930 mad 389. we see no reason to go against so many authorities with which we, with all respects, agree. the result is that the.....
Judgment:

Mukerji, Ag. C.J.

1. This is an application which purports to have been made under Section 115, Civil P.C. it arises out of insolvency proceedings and therefore we think that the proper section under which to entertain this petition is Section 75, Insolvency Act, and we accordingly do so. It appears that a firm, Murlidhar Manglal, was actually declared insolvent on 30th May 1929, and two years' time was allowed by the order to apply for a discharge. The insolvents made an application for a discharge on 2nd July 1931 and two days later the receiver supported the application by his petition dated 4th July 1931. The Court extended the time for applying for a discharge. The creditor whose application we have got before us appealed to the District Judge and he upheld the order appealed against. Before us it is contended that it was not open to the Insolvency Court to extend the time for discharge after the expiry of the time originally fixed, inasmuch as no application had been made previously to the expiry of that period. The application was made under Section 43, Insolvency Act, which says that, in case no application is made within the period specified by the Court, the order of adjudication shall be annulled. Section 27, Insolvency Act, lays down that the Court is entitled, on sufficient cause being shown, to extend the period within which a debtor shall apply for his discharge. It is a rule of interpretation of statutes that we cannot read two different portions of the same statute in a manner so as to make one provision contradict the other. In this view we must hold that the Court has power to grant further time to the judgment-debtor to apply for discharge.

2. In cases where the Court is empowered to grant further time it has been held that this power implies within it a power to grant an extension even after the expiry of the time originally granted. This view was taken by their Lordships of the Privy Council in Badri Narain v. Sheo Koer (1890) 17 Cal 512. It is true that this ruling was given under the Civil Procedure Code of 1882, but the principle is the same. In our view therefore it was open to the Insolvency Court to extend the time for applying for a discharge even after the expiry of the period originally fixed. If the annulment of the adjudication be not automatic, then the Court must always have power to extend time even after the expiry of the original period. In this Court two learned Judges have held in Hari Ram v. Krishan Ram : AIR1927All418 , that there is no automatic annulment of an adjudication. If this view be correct then the power of the Court to extend time after the expiry of the original period does exist. The view which we are taking is amply supported by authorities of other Courts, namely, A.J.E. Abraham v. H.B. Sookias : AIR1924Cal777 , Gopal Ram v. Magni Ram A.I.R 1928 Pat 338 and Palani Goundan v. Official Receiver, Coimbatore A.I.R. 1930 Mad 389. We see no reason to go against so many authorities with which we, with all respects, agree. The result is that the application fails on the merits and is hereby dismissed with costs.


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