JUDGMENT

1. These are two appeals; arising out of insolvency proceedings in. the course of which by an order dated 22nd June 1927, the C.T.A.R.A. Chettyar Firm were adjudicated insolvent by the District Court of Mandalay at the instance of one Judhishtir Day. The insolvency was a very large one and the proceedings are far from being completed. A number of important transfers by the firm have already been set aside as fraudulent and there are others, investigations as to the character of which are still pending. There are also a number of other substantial matters remaining to be dealt with.

2. By the order of adjudication the insolvent firm was ordered to apply for discharge on or before 22nd June 1928. On that date the case was called on but there was no appearance; and owing to the illness of the Judge who was unable to attend the Court that day an order was passed and subsequently signed as "seen" by the Judge, directing that the matter should be put up again on 25th June 1928. The matter was in fact dealt with on 26th June 1928. From the diary of that date it is clear that there was again no appearance, and as the learned Judge was of the opinion that the firm could not get a discharge even if applied for, he extended the time for such application until 21st December 1928, and ordered that the proprietor of the firm be so informed by registered post. On that day the matter again came before the same Judge, and again there was no appearance. The Judge seems to have been concerned with other matters arising out of the insolvency and passed no order upon the question of discharge.

3. From the diary order of 17th and 19th January 1929, it would appear that the successor of the learned Judge who had previously dealt with the matter had meanwhile consulted the Official Receiver, and although he was doubtful upon the point, he, on the latter date, made an order extending the period within which the insolvent firm should apply for discharge until 21st January 1930. No application was made on this day and on 25th March 1929, a petition by the present appellant (and another) for the annulment of the adjudication came before the Court, and on 27th March, an order passed refusing the annulment asked for and declining to alter the order of 19th January 1929, extending the time till 21st January 1930. The appeals before us relate to the orders of 19th January and 27th March 1929, respectively.

4. Sub-section (1), Section 43, Provn. Insol. Act of 1920 is as follows:

If (she 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 ha annulled, and the provisions of Section 37 shall apply accordingly.

5. By Sub-section (1), Section 41 of the Act, it is provided that:

a debtor may, at any time after the order o5 adjudication and shall, within the period specified by the Court -apply to the Court for an order of discharge....

6. The words "and shall within the, period specified by the Court," were inserted by the amending Act of 1920.

7. The main question, therefore, arising upon these appeals is whether in the event of an insolvent not applying for his discharge within the period originally specified, or subsequently extended upon an application made within that period, the adjudication must of necessity be annulled. In other words, we have to decide whether the provisions of Sub-section (1), Section 43 are mandatory or not. For the appellant it is suggested that the answer to this question should be in affirmative; for the respondent the contrary is contended. Before dealing with this matter two preliminary points may be disposed of.

8. On behalf of the appellant it was suggested that the order of 19th January 1929, granting the further extension of time must be held to be inoperative inasmuch as it was made subsequent to 21st December 1928, the