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Duraiyya Solagan Vs. Venkatarama Naiker and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in60Ind.Cas.123
AppellantDuraiyya Solagan
RespondentVenkatarama Naiker and ors.
Cases ReferredSambasira Mudaliar v. Panchdnada Pillai
Excerpt:
provincial insolvency act (iii of 1907), section 36 - limitation act (ix of 1908), schedule i article 181, applicability of--official receiver, application by, to avoid transfer--limitation for making application. - - we are of opinion that that article does not apply to an application like the present one it has been held more than once in this court that article 178 of the limitation art of 1877, which corresponds to article 181 of the present act, applied only to application? 3. the application we are dealing with is clearly one under the insolvency act and not one under the code, though the procedure prescribed by the code has to be adopted in its disposal......which corresponds to article 181 of the present act, applied only to application? under the civil procedure code. see janaki v. kesavalu 8 m. 207 . and gnanamttthu upadesi v. vana koilpillai nadan 17 u. 379. this view has also been accepted by the other high court. see rahmat karim v. abdul karim 34 c. 672. connect v. himalaya bank limited 18 a. 12 ali ahmad v. naziran bibi 24 a. 542 . and baimanekbai v. manekji kavasji 7 b. 213.2. our attention was drawn to the ruling in sambasira mudaliar v. panchdnada pillai 31 m. 24 but in that case the learned judges did not dissent from the earlier decisions but same to the conclusion that the application there was in reality one under the code of civil procedure, to which article 178 applied. that case is thus not an authority against the view we.....
Judgment:

1. It bas been argued before us that the learned District Judge was wrong in holding that the application by the Official Receiver under Section 36 of the Provincial Insolvency Act was not barred by limitation, and that, in reality, it was so barred under Article 181 of the Limitation Act. We think The District Judge's conclusion is right though upon a ground different from what he has taken. We are of opinion that that Article does not apply to an application like the present one It has been held more than once in this Court that Article 178 of the Limitation Art of 1877, which corresponds to Article 181 of the present Act, applied only to application? under the Civil Procedure Code. See Janaki v. Kesavalu 8 M. 207 . and Gnanamttthu Upadesi v. Vana Koilpillai Nadan 17 U. 379. This view has also been accepted by the other High Court. See Rahmat Karim v. Abdul Karim 34 C. 672. connect v. Himalaya Bank Limited 18 A. 12 Ali Ahmad v. Naziran Bibi 24 A. 542 . and Baimanekbai v. Manekji Kavasji 7 B. 213.

2. Our attention was drawn to the Ruling in Sambasira Mudaliar v. Panchdnada Pillai 31 M. 24 but in that case the learned Judges did not dissent from the earlier decisions but same to the conclusion that the application there was in reality one under the Code of Civil Procedure, to which Article 178 applied. That case is thus not an authority against the view we are following.

3. The application we are dealing with is clearly one under the Insolvency Act and not one under the Code, though the procedure prescribed by the Code has to be adopted in its disposal. It is thus an application to which no limitation applies and one which may be made at any time daring the pendensy of the insolvency proceedings.

4. In this view, the appeal fails and is dismissed with costs.


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