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Report No. 26

Clause 37

General.-This clause has been taken from section 41 and section 42(3) of the Provincial Act and sections 38 and 40, Presidency Act.

Sub-clause (1).-Concluding portion beginning with the words "but save where the public examination" has been taken from section 38(1) of the Presidency Act. As to hearing, see below.

Sub-clause (2).-The words "subject to this section" in existing section 41(2) of the Provincial Act are not accurate. Actually, it is the next section-section 42 of the Provincial Act-which controls the discretion of the court, and hence the provision should be made subject to the next section. This has been made clear.

The effect of the next section-i.e., section 42 of the Provincial Act-is that in the cases mentioned in that section, the court cannot grant an absolute discharge. But the court's discretion to grant a discharge with suspended operation or with condition is not affected. To make this clear, the words "subject to " have been placed not at the beginning of sub-clause (2) in the draft, but in paragraph (a) of that sub-clause, so that they will control only the grant of an absolute order of discharge.

"Hearing"-The provision in section 38(1), latter part, Presidency Act, about hearing in open court, has been omitted as unnecessary.

In the Presidency Act, section 40, second sentence, there is a provision that at the hearing the court may put such questions as it thinks fit to the insolvent and record evidence also. It is considered unnecessary to have this elaborate provision, since all these things are implied in the expression "hearing".

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