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Kallukutty Parambath Perachan Vs. Puthen Peetikakkal Kuttiali - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in91Ind.Cas.144
AppellantKallukutty Parambath Perachan
RespondentPuthen Peetikakkal Kuttiali
Cases ReferredRangiah Chettiar v. Annaswamy Alwar Ayyangar
Excerpt:
provincial insolvency act (v of 1920), sections 4, 27 - debtor's petition for adjudication under old act--new act in force on date of disposal of petition--procedure applicable--time for applying for discharge--failure to apply within time--notice to creditors on annulment. - .....on for disposal, the old act is applicable and not the new act. what was held there was that a creditors right to apply for adjudicating his debtor an insolvent based on an alleged fraudulent transfer by the debtor had become barred under the old act and, therefore, that the new act could not revive the barred right and the district court had no power under section 78 of act v of 1920 to excuse the delay so as to revive the barred right. this proceeds on a well-known and perfectly intelligible principle that a new act cannot revive a right barred under an old act. this decision does not, therefore, help the petitioner see also pulpati hanumaya v. ravuri ramayya 64 ind. cas. 270 : (1921) m.w.n. 381. my conclusion is in accordance with the decision in rangiah chettiar v. annaswamy.....
Judgment:

Ramesam, J.

1. In this case the insolvency petition was put in on the 8th of January 1920 and the petitioner was adjudicated an insolvent on the 4th of June 1920. Meanwhile, Act V of 1920 had come into force on the 25th of February 1920. At the time of adjudication, the Oourt fixed one year as the period within which he should apply for discharge. This order was based obviously under Section 27 of Act V of 1920 as the old Act III of 1907 contained no such provision. He not having applied within one year, the District Munsif of Calicut annulled the order of adjudication and the District Judge of South Malabar affirmed the order of appeal. The present revision petition before me is against the order of the District Judge.

2. It has been contended before me that, as the petition was filed under the old Act, the petitioner obtained a vested right to an unconditional order of discharge and the District Munsif's Court had no jurisdiction to impose a condition that discharge must be applied for within one year under Section 27 of the new Act. It is true that in Chhatrapat Singh Dugar v. Kharag Singh Lachmiram . 32 M.L.J. 1 : 19 Bom. L.R. 174; 21 C.W.N. 497 : 44 I.A. 11 (P.C.), the Privy Council held that where an application under the Insolvency Act complies with all the conditions specified by the Act the petitioner is entitled to an order of adjudication and the dismissal of his petition amounted to an abuse of the process of Court. But I do not see how this decision helps the petitioner. For some reason or other the petition did not come on for final disposal before the 25th t of February and by the time it did so come on the new Act had come into force. What order should be passed on the insolvency petition seems to me to be, a matter of procedure and it cannot be said that by the mere filing of a petition under the old Act the petitioner acquired a vested right to a particular kind of order, which, cannot be affected by the new Act. The order actually passed was a perfectly proper order under the new Act. It may be that, if a condition was improperly annexed it may be ignored as a nullity vide, Ram Chandra Neogi v. Shama Charan Bose 21 Ind. Cas. 950 : 19 C.L.J. 83 : 18 C.W.N. 1052 but I do not see any way to hold in this case that the condition was improperly annexed or was passed without jurisdiction. I do not see how the remarks of Macleod, C.J. in Laxmi Bank Limited v. Ramchandra Narayan 24 Bom. L.R. 292 : A.I.R. (1922)(B.) 80 help the petitioner. All that was said in that case was there was no material difference1 between Act III of 1907 and the Act of 1920 in the matter of what was required to be proved before it is decided that the petitioner had a right to present his petition. Nor does the decision in Aiyapuraju v. Veeva Venkatakrishnayya (1923) M.W.N 195 : A.I.R(1923) . (M) 462 help the petitioner. It is not decided in that case that, when a petition was filed under the old Act and when the new Act had come into force by the time the petition comes on for disposal, the old Act is applicable and not the new Act. What was held there was that a creditors right to apply for adjudicating his debtor an insolvent based on an alleged fraudulent transfer by the debtor had become barred under the old Act and, therefore, that the new Act could not revive the barred right and the District Court had no power under Section 78 of Act V of 1920 to excuse the delay so as to revive the barred right. This proceeds on a well-known and perfectly intelligible principle that a new Act cannot revive a right barred under an old Act. This decision does not, therefore, help the petitioner see also Pulpati Hanumaya v. Ravuri Ramayya 64 Ind. Cas. 270 : (1921) M.W.N. 381. My conclusion is in accordance with the decision in Rangiah Chettiar v. Annaswamy Alwar Ayyangar 18 L.W. 836 : A.I.R.(1924) (M.) 368, where it is observed that any orders passed under the old Act or rights obtained thereunder will be unaffected by the new Act. In the present case we have neither.

3. A second point raised by the petitioner is that the adjudication should not be annulled without notice to all the creditors and he relied on a decision in In the matter of Rajnarayan Pal 13 B.L.R. App. 25. In that case the petition for annulment was filed on the ground that the insolvent had come to a settlement with all his creditors and objection was properly taken for the Official Assignee that notice should be given to all the creditors having regard to the nature of the ground but I do not see how that decision applies here. Even if it does, it is for the creditors to complain. They have not chosen to appear and oppose the annulment in all the three Courts. I take it they are apparently satisfied with the annulment. Anyhow I do not see how this objection can be taken by the petitioner. I may add that a preliminary objection was taken that the revision petition does not lie as an appeal lies under Section 75(1) proviso. As I have come to a conclusion against the petitioner on the merits, it may not be necessary to deal with this objection, but I think the objection is well-founded. The words 'of any nature whatsoever' in Section 4 of the new Act show that all questions which arise in the course of insolvency may be dealt with by the Court for the purpose of doing complete justice and in such a case a second appeal lies to the High Court On a question of law. It, therefore, seems to me that the revision petition is not competent.

4. The result is the petition is dismissed with costs.


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