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A.J.E. Abraham Vs. H.B. Sookias - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal777,(1924)ILR51Cal337
AppellantA.J.E. Abraham
RespondentH.B. Sookias
Excerpt:
insolvency - jurisdiction or court to extend time to apply for discharge after the expiry of the period specified in the order of adjudication--provincial insolvency act (v of 1920), section 27, clause (2). - .....contended on behalf of the petitioner that the court had no power under section 27, clause (2), to extend the time after the expiry of the period of 6 months. section 27, clause (2), of act v of 1920 lays down that the court may, if sufficient cause is shown, extend the period within which the debtor shall apply for his discharge and in that case shall publish notice of the order in such manner as it thinks fit.' there is no doubt, therefore, that the court has the power to extend the time. the only question is whether it can do so after the expiry of the period originally fixed.3. it is argued by the learned counsel on behalf of the petitioner that section 43 provides that 'if the debtor does not appear on the day fixed for hearing his application for discharge or on such subsequent day.....
Judgment:

Chatterjea and Panton, JJ.

1. This Rule arises out of proceedings under the Provincial Insolvency Act (V of 1920). The opposite party applied to be adjudged an insolvent and was adjudged insolvent by the Subordinate Judge of Asansol on the 19th September, 1922, who directed the insolvent to apply for his discharge within 6 months from that date. The 6 months expired on the 18th March, 1923. On the 3rd April, 1923, the insolvent made an application for his discharge supported by an affidavit explaining the delay in making it. On the 4th April, 1923, the Sub-ordinate Judge extended the time for making the application for discharge. That matter is now pending.

2. Against that order this Rule was obtained and it is contended on behalf of the petitioner that the Court had no power under Section 27, Clause (2), to extend the time after the expiry of the period of 6 months. Section 27, Clause (2), of Act V of 1920 lays down that the Court may, if sufficient cause is shown, extend the period within which the debtor shall apply for his discharge and in that case shall publish notice of the order in such manner as it thinks fit.' There is no doubt, therefore, that the Court has the power to extend the time. The only question is whether it can do so after the expiry of the period originally fixed.

3. It is argued by the learned Counsel on behalf of the petitioner that Section 43 provides that 'if the debtor does not appear on the day fixed for hearing his application for discharge or on such subsequent day as the Court may direct, or if the debtor does not apply for an order of discharge within the period specified by the Court, the order of adjudication shall be annulled, and the provisions of Section 37 shall apply accordingly.'

4. It is urged that on the expiry of the period specified, adjudication becomes automatically annulled if no application is nude prior to the expiry of the period. We have not been shown any authority in support of that contention. It is true that Section 43 provides that the order of adjudication shall be annulled; but that seems to indicate that it is to be annulled at the instance of the opposite party or by the Court itself, and does not stand cancelled automatically on the expiry of the period.

5. We think that under Section 27, Clause (2), the Court has the power to extend the time even after the expiry of the period of the order for discharge and the order of the Court below should not be interfered with. The Rule is therefore discharged with costs.


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