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K. Doraiswami Chetty Vs. the Official Assignee of Madras - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad946; 95Ind.Cas.446; (1926)51MLJ130
AppellantK. Doraiswami Chetty
RespondentThe Official Assignee of Madras
Excerpt:
- .....8 days after service of the order, or such further time as may be allowed by the court, apply by notice of motion supported by affidavit to annul the order.2. in this case no notice of the order of adjudication was given to the insolvent at all.this application was not made within eight days, nor was any question raised as to allowing him further time. the learned judge has held that the insolvent, who knew all about the adjudication, must be taken as a person who had in effect had service of the order. we do not think that that is a construction of the rule which can be supported. had it been so intended words such as 'or after the order had been brought to his knowledge' after 'service of the order' could easily have been added, and no such words are found. we therefore order that.....
Judgment:

1. Rule 26, Order 3 of the Insolvency Rules runs as follows:

If an order of adjudication is made without service of the petition, the debtor may, within 8 days after service of the order, or such further time as may be allowed by the Court, apply by notice of motion supported by affidavit to annul the order.

2. In this case no notice of the order of adjudication was given to the insolvent at all.This application was not made within eight days, nor was any question raised as to allowing him further time. The learned Judge has held that the insolvent, who knew all about the adjudication, must be taken as a person who had in effect had service of the order. We do not think that that is a construction of the rule which can be supported. Had it been so intended words such as 'or after the order had been brought to his knowledge' after 'service of the order' could easily have been added, and no such words are found. We therefore order that the case be remanded and dealt with on the merits. The appellant will have the costs of this appeal in any event and the costs of the other proceedings will be in the discretion of the learned Judge.


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