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1921 Supreme(Mad) 23
IN THE HIGH COURT OF MARAS
S Aiyar, Napier
Pulpati Hanumaya
Versus
Ravuri Ramayya
Decided On : 24 January, 1921
The discretion given to the Court under a new Act cannot be extended to applications made under an old Act, and the provisions of the General Clauses Act were against the appellant's contention.
Headnote:
Provincial Insolvency Act - Application for Insolvency - Dismissal of application due to expiration of prescribed period - Discretion of the Court under new Act - Dismissal of appeal
Fact of the Case:
The creditor's application to adjudicate the debtor as insolvent was dismissed as it was made after the prescribed period of three months from the date of the acts of insolvency, as allowed under the Provincial Insolvency Act III of 1907.
Finding of the Court:
The Court dismissed the appeal, stating that the discretion given to the Court under the new Act V of 1920 cannot be extended to applications made under the old Act, and the provisions of the General Clauses Act X of 1897 were against the appellant's contention.
Issues: Expiration of prescribed period for application under the Provincial Insolvency Act III of 1907, discretion of the Court under the new Act V of 1920, and the applicability of the General Clauses Act X of 1897.
Ratio Decidendi: The Court held that an application made under the old Act could not be considered as an application under the new Act, and the discretion given to the Court under the new Act cannot be extended to applications made under the old Act.
Final Decision: The appeal was dismissed with costs.
1. The right to apply to the Court, given by the Provincial Insolvency Act III of 1907 to the creditor, to adjudicate the debtor as an insolvent was not exercised within the period of three months (from the date of the commission of the acts of insolvency) allowed under that Act. The application under that Act was made after the expiry of that period and was properly dismissed, as the applicant had no right to make the application under that Act at the time he made it in the proper Court.
2. It is argued that, as the application was pending when the new Act V of 1920 came into force and as that Act contains a provision (Section 78) giving a discretion to the Court to allow an extension of the period prescribed for making applications under the Act, and to excuse the delay in presentation, the District Judge ought to have exercised that discretion in favour of the appellant (petitioner) and accepted his application as a valid one.
3. It is difficult to follow the argument. An application made statedly under the Act of 1807, which could be made only under that Act on its date (the date of the application), cannot be considered to be an application under the new Act of 1920, merely because it was pending disposal when the new Act came into force. The discretion given to the Court by the Legislature statedly in respect of applications under the new Act cannot again be extended to applications made under the old Act. The provisions of Section 6, Clauses (b) and (c) of the General Clauses Act, X of 1897, are also against the appellants contention. The case in Jogodanund Singh v. Amrita Lal Sircar 22 C. 767 (F.B.) : 11 Ind. Dec. (n.s.) 509. was decided On the consideration that Section 310A, Civil Procedure Code, which was introduced as an addition to the Civil Procedure Code, was not affected by the corresponding provisions of the old General Clauses Act, as the enactment of the said Section 310A was a mere addition to the existing Civil Procedure Code, that is, there was no enactment repealing the existing Civil Procedure Code into which Section 310A was introduced.
4. We, therefore, dismiss the appeal with costs.
