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W.A. Srinivasa Aiyangar Vs. the Official Assignee of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1913)25MLJ299
AppellantW.A. Srinivasa Aiyangar
RespondentThe Official Assignee of Madras and anr.
Excerpt:
- - 3. section 90 of the presidency towns insolvency act states 'in proceedings under this act the court shall have the like powers and follow the like procedure as it has and follows in the exercise of its ordinary original civil jurisdiction'.in section 2 of the act 'the court' is defined as meaning 'the court exercising jurisdiction under this act,'and by section 3, the court having jurisdiction under the act for the purpose of this case is the 'high court of judicature at madras......the powers conferred by section 90 of the presidency towns insolvency act and section 24 of the civil procedure code.2. the question as to whether the learned judge had jurisdiction to make the order does not appear to have been raised before him. but mr. chamier who appears for the appellant (the insolvent), has taken the point here that (the judge) had no jurisdiction to make the order.3. section 90 of the presidency towns insolvency act states ' in proceedings under this act the court shall have the like powers and follow the like procedure as it has and follows in the exercise of its ordinary original civil jurisdiction'. in section 2 of the act ' the court' is defined as meaning ' the court exercising jurisdiction under this act,' and by section 3, the court having jurisdiction.....
Judgment:

Arnold White, C.J.

1. This is an appeal from an order made by Mr. Justice Bakewell transferring an insolvency petition pending before him to the District Court of Tanjore. The learned Judge, as appears from the terms of the order purported to make it under the powers conferred by Section 90 of the Presidency Towns Insolvency Act and Section 24 of the Civil Procedure Code.

2. The question as to whether the learned judge had jurisdiction to make the order does not appear to have been raised before him. But Mr. Chamier who appears for the appellant (the insolvent), has taken the point here that (the judge) had no jurisdiction to make the order.

3. Section 90 of the Presidency Towns Insolvency Act states ' In proceedings under this Act the court shall have the like powers and follow the like procedure as it has and follows in the exercise of its ordinary original Civil Jurisdiction'. In Section 2 of the Act ' the court' is defined as meaning ' the court exercising jurisdiction under this Act,' and by Section 3, the court having jurisdiction under the Act for the purpose of this case is the ' High Court of judicature at Madras.' This order was therefore made by the High Court of Judicature at Madras exercising jurisdiction in Insolvency. Under the Provincial Insolvency Act, 1907, ' the court' is defined as meaning ' the court exercising jurisdiction under this Act.' The jurisdiction conferred by the two Acts are distinct, and the provisions of the two Acts differ in several important respects.

4. Section 24 of the Civil Procedure Code states, 'On the application of any of the parties...the High Court...may at any stage transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same.' It is not necessary for me to express any opinion as to whether this court in the exercise of its ordinary original Civil Jurisdiction can make an order under Section 24 of the Civil Procedure Code. For the purpose of this appeal we assume that it can. The question then remains, Is the Court to which this petition has been transferred competent to try or dispose of the same. It seems to me to be clear that it is not, for the reason which has already been stated viz., that the two jurisdictions are distinct.

5. It has been suggested that there are sometimes ' collusive ' arrests within the jurisdiction of the High Court exercising jurisdiction in insolvency under the Presidency Towns Insolvency Act in cases where it would be convenient for the estate to be administered when the estate is situate under the Provincial Act. That may be so. If it is, it is a matter for the legislature to deal with.

6. I may add that this point came before Mr. Justice Wallis and in dealing with it he said that he was not prepared to make an order of the kind asked for.

7. We must therefore set aside the order and allow the appeal.

Oldfeld, J.

8. I agree.


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