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Mohammad Maraikkar Vs. the Official Receiver and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in36Ind.Cas.828
AppellantMohammad Maraikkar
RespondentThe Official Receiver and ors.
Excerpt:
provincial insolvency act (iii of 1907) sections 16, 36 - limitation, act (ix of 1908), section 14--mortgage by insolvent within two years of petition in insolvency--presentation of petition to proper court--computation of time--official receiver right of to set aside mortgage. - .....section 16(6) be treated as that on which the insolvency petition was presented. but even then the official receiver respondent's argument requires the further assumption that the petition was presented not on 20th september 1911 when it was presented in the court having jurisdiction but on 15th august 1911 when it was presented to a court having none. this assumption has been justified by reference to section 14 limitation act. but that section relates only to computation of periods of limitation and the question before us is not of such computation but of a provision empowering the official receiver to take proceedings and impliedly stating a rule of evidence applicable to the proceedings so taken. no other justification for the official receiver's contention has been alleged and we.....
Judgment:

1. As regards the sale evidenced by Exhibit II the case is clear and we cannot add anything to the lower Court's discussion of it. Its order regarding Exhibit II is confirmed.

2. As regards the mortgage Exhibit III, dated 8th September 1909 the question is whether Section 26, Provincial Insolvency Act is applicable when the order adjudicating 2nd respondent insolvent was passed on 24th July 1912 We will assume, though we do not decide that for the purpose of Section 16(6) the date of the adjudication can with reference to Section 16(6) be treated as that on which the insolvency petition was presented. But even then the Official Receiver respondent's argument requires the further assumption that the petition was presented not on 20th September 1911 when it was presented in the Court having jurisdiction but on 15th August 1911 when it was presented to a Court having none. This assumption has been justified by reference to Section 14 Limitation Act. But that section relates only to computation of periods of limitation and the question before us is not of such computation but of a provision empowering the Official Receiver to take proceedings and impliedly stating a rule of evidence applicable to the proceedings so taken. No other justification for the Official Receiver's contention has been alleged and we can see none. We must therefore hold that Exhibit III was not executed within the period referred to in Section 36. It is then not contended that the Official Receiver was entitled to apply under that section or to take proceedings otherwise than by suit. The lower Court's order so far as it relates to Exhibit III must therefore be set aside. There will be no order as to costs.


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