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L. Venkataswamy Chetty Vs. V.A. Ganapathia Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1715 of 1949
Judge
Reported inAIR1953Mad465; (1952)1MLJ765
ActsProvincial Insolvency Act, 1920 - Sections 75, 75(4) and 78; Limitation Act, 1908 - Sections 5 and 12
AppellantL. Venkataswamy Chetty
RespondentV.A. Ganapathia Pillai and ors.
Appellant AdvocateP.V. Viswanatha Iyer, Adv.
Respondent AdvocateS. Ramachandra Iyer and ;K.R. Rama Iyer, Advs.
Cases ReferredIn Re Stranger v. Stranger
Excerpt:
.....notification to notify entire world of adjudication of an insolvent which is judgment in rem - appeal filed within 30 days of date of gazette notification - held, no default on part of appellant in filing appeal - civil revision petition allowed. - - butwhen we consider that a person can becomeaggrieved only when the act by reason ofwhich the grievance arises comes to his knowledge, the better and more commonsensicalview seems to be that in the case of parties tothe proceeding the 30 days would be from thedate of the order because they would haveknown of its pronouncement and in the caseof third parties the starting point would be thedate of gazette notification which would fixhim with knowledge of the order passed by thecourt. ,28-12-1948. 12. point 2: section 12 of the..........application for copy was made on 24-1-1949 and excluding the time taken for obtaining copies, the appeal filed on 21-2-1949 was certainly within 30 days of the date of the gazette notification dated 28-12-1948. 13. point 3: but even assuming that the appeal had been filed bayond 30 days the learned district judge was not justified in summarily dismissing the appeal but should have considered whether a case had been made out for the application of section 5 of the limitation act. the point is concluded by authority. in --'mahomed siddique yousuf v. official assignee of calcutta', (1943) 2 mlj 160 (pc) their lordships of the privy council have held, approving 'ex parte' learoyd (1879) 10 ch d 3 that in the case of such third parties 'this appeal being the sole' remedy is one which justice.....
Judgment:
ORDER

1. This is a civil revision petition filed against the order made by the learned District Judge, Tirunelveli, in C.M.A. No. 11 of 1949.

2. The facts are: The petitioner before us L. Venkataswami Chetty had dealings with Ganapathi Pillai who has been adjudicated an insolvent and on the foot of the transactions between them he filed a suit in the Court of the District Munsif of Coimbatore. He obtained an order for attachment before judgment and consequently a major portion of the articles mentioned in the inventory filed by Arunagiri Nadar (to whom reference will be made later) on 7-10-1948 had been attached and removed and came to be in the possession of this Venkataswami Chetty.

3. In these circumstances Arunagiri Nadar filed a creditor petition against this Ganapati Pillai alleging that the latter had borrowed on five promissory notes and by means of a cheque a sum of Rs. 17,000/-, that the amount due to the said Arunagiri Nadar as on 30-6-1938 was Rs. 14625-7-3, that there was a demand in August 1948 and this Ganapathi Pillai stated that he could not pay bis creditors, that this Ganapathi Pillai when the creditors sought him made himself unavailable & could not be got at though searched for several times in his house and shop and that in the meanwhile the petitioner herein Venkatasami Chetti had filed a suit against Ganapathi Pillai in the Coimbatore District MunsifJs Court and attached before judgment the clothes in Ganapathi Pillai's shop.

4. Ganapathi Pillai promptly filed a statement that it was true that this Venkataswami Chetti had obtained an order for attachment before judgment and had removed the clothes from his shop and that therefore he proposed to submit to an adjudication in order to safeguard the interests of all his creditors and that he was prepared to put all his assets and accounts in the hands of the Official Receiver except these attached & removed as aforesaid & that therefore he may be adjudged an insolvent as prayed for by Arunagiri Nadar and that all his assets be made to vest forthwith in the Official Receiver.

5. The psychological moment at which this creditor-petition is filed and the prompt submission to adjudication with the request that the assets in the hands of Venkatasami Chetti should be vested in the Official Receiver bore all the impress of a collusive creditor-petition.

6. On account of only one other person by name B.T. Subbiah Mudaliar being added as second respondent creditor as per order dated 19-11-1948 (the creditor petition itself was dated 24-9-1948) and that creditor though represented by a vakil not putting forward any contention as can be seen from the order of the learned Subordinate Judge who makes no reference to this creditor in his order 'at all, Arunagiri Nadar had a walk ever _and this Ganapathi Pillai was adjudicated an insolvent on 13-12-1948 and his assets were made to vest in the Official Receiver of Tinnevelly.

7. On receiving notice from the Official Receiver to make available the assets in his hand this Venkatasami Chetti of Sukravarpet in Coimbatore ran to the District Judge of Tirunelveli and filed C.M.A. No. 11 of 1949 to set aside the order of adjudication on various grounds which do not concern us for the present here.

8. The learned District Judge dismissed the appeal on the short ground that the order of adjudication was made on 13-12-1948 and that this Venkatasami Chetti had applied for a copy of the order on 24-1-1949 and received the copy on 18-2-1949 and filed the appeal on 21-3-1949 and that Venkatasami Chetty had not come to Court within 30 days from the date of the order of the adjudication and also the date of publication in the Gazette on 28-12-1948. Hence this civil revision petition.

9. Section 75(4) of the Provincial Insolvency Act states that any person aggrieved by an order made by a subordinate Court may appeal to the District Court and the period of limitation for such appeal to the District Court shall be 30 days. Section 78(2) of the said Act states that the provisions of Sections 5 and 12 of the Limitation Act shall apply to appeals and applications under this Act. Combining these two what will be the effect in regard to limitation in this case?

10. In this case we have to consider three points, namely, what was the starting point of limitation for the 30 days, secondly, whether the time taken for getting copies can be excluded, and thirdly, whether Section 5 of the Limitation Act is applicable.

11. Point 1: The starting point of limitationin this case can only be the Gazette notificationof the adjudication which was on 28-12-1948and cannot be the date of adjudication, viz.,13-12-1948. Section 75(4) itself is silent in regard to the starting point of limitation. Butwhen we consider that a person can becomeaggrieved only when the act by reason ofwhich the grievance arises comes to his knowledge, the better and more commonsensicalview seems to be that in the case of parties tothe proceeding the 30 days would be from thedate of the order because they would haveknown of its pronouncement and in the caseof third parties the starting point would be thedate of Gazette notification which would fixhim with knowledge of the order passed by theCourt. The object of the Gazette notificationis to notify the entire world of the adjudicationof an insolvent which is a judgment 'in rem'so that all persons interested and aggrievedmay come forward and take steps for establishing their rights or ventilating their grievances.There are observations supporting this view in-- 'Swaminathan v. Lakshmanan, reported in53 Mad 491. Otherwise parties affected by itwill have no means of observing thc order oracting in conformity with it or of appealingagainst it or otherwise setting it aside. Therefore the starting point of limitation in thiscase is the date of Gazette notification, viz.,28-12-1948.

12. Point 2: Section 12 of the Limitation Act has been clearly made applicable to an appeal under Section 75 of the Provincial Insolvency Act by the provisions of Section 78 and in fact the lower Court itself has remarked that the appeal had been presented beyond the period of 30 days even excluding the period allowable for obtaining copy of the order. In this case the application for copy was made on 24-1-1949 and excluding the time taken for obtaining copies, the appeal filed on 21-2-1949 was certainly within 30 days of the date of the Gazette notification dated 28-12-1948.

13. Point 3: But even assuming that the appeal had been filed bayond 30 days the learned District Judge was not justified in summarily dismissing the appeal but should have considered whether a case had been made out for the application of Section 5 of the Limitation Act. The point is concluded by authority. In --'Mahomed Siddique Yousuf v. Official Assignee of Calcutta', (1943) 2 MLJ 160 (PC) their Lordships of the Privy Council have held, approving 'ex parte' Learoyd (1879) 10 Ch D 3 that in the case of such third parties 'this appeal being the sole' remedy is one which justice demands that the Courts should carefully protect; and, if an extension of time for appealing is reasonably required such extension should be granted 'ex debito' justitiac' to use the words of James L. J. in' 'ex parte' Tucker: 'In re Tucker', (1879) 12 Ch D 308.

Their Lordships further pointed out that though the time for appealing from an adjudication order under the Limitation Act is limited thereunder, a general power of extension of time is given by Section 5 of the Act and that such applications should not be rejected as belated but should be granted. The facts of this case are even stronger than the facts covered by the Privy Council decision and the decision in. 'ex parte' Tucker: in re Tucker, (1879) 12 Ch D 308 is in point. There it was held that

'a third person who is aggrieved by an adjudication of bankruptcy, by reason of the date of an act of bankruptcy on which the adjudication purports to be founded is after the expiration of the time limited for appealing, entitled, 'ex debito justltiae', to an extension of the time for appealing, if he applies promptly after he becomes aware of the date of the act of bankruptcy which affects his rights.'

See also 'ex parte' Geisal: -- 'In Re Stranger v. Stranger', reported in (1882) 22 Ch D 436.

14. The order of the lower Court cannot be sustained as this was a case where first of all applying Section 12 of the Limitation Act and taking the starting of limitation as the date of Gazette notification, there is no default on the part of the appellant and his appeal is in time. Assuming that the date of starting point of limitation is the date of the order, applying Section 12 of the Limitation Act the lower Court should have 'ex debito justitiae' applied Section 5 of the Limitation Act.

15. In this connection it is strongly pressed by the learned advocate for the respondent that an application should have been directed to be filed under Section 5 of the Limitation Act so that he might have been able to show that no case has been made out for excusing the delay and that the petitioner from the very beginning knew of the adjudication and that no case has been made out for extending 'ex debito justitiae' the appealing time. This is not a contention without substance. We have no materials before us to decide one way or the other.

16. The proper course therefore is to set aside the order of the learned District Judge and direct the petitioner to file an application under Section 5 of the Limitation Act to come upalong with the appeal in regard to which theorder of the lower Court is set aside and todirect the learned District Judge to hear boththe matters together and dispose of them according to law. Ordered accordingly. The costsof this civil revision petition will abide by andbe provided for in the revised order of thelower Court and the separate claims of thesepersons will be considered.


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