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Report No. 26

Clause 40

Review English Law Presidency Act.-This follows section 42 of the Presidency Act, there being nothing corresponding to it in the Provincial Act. There is some doubt1 as to whether the dismissal of an application for discharge under section 42 of the Provincial Act operates as a bar to a subsequent application by the insolvent for discharge. A Sind case-Re Henry Robert Smith, (1915) 32 IC 575-decides that it does, but the contrary view has been held by the Madras High Court in Gopalan v. Gopalan, AIR 1925 Mad 915 (FB), which is a decision of a Full Bench, by the High Court of Calcutta in re:

Pie Karim Mia, AIR 1931 Cal 392 and by the Lahore High Court in Ladha Ran v. Prabh Dia1, AIR 1931 Lah 672.2 The position may be first discussed under review. Section 108(1) of the English Act gives the court the power to review its order and rescind or vary it if it thinks it right to do so. This power is used for reviewing an order refusing discharge3-4. Section 8(1) of the Presidency Act corresponds to section 108(1) of the Bankruptcy Act, 1914, and under that section, the court has the same power to review an order refusing discharge. There is no provision in the Provincial Act corresponding to section 8(1) of the Presidency Act, and a power to review can, therefore, be exercised by courts under that Act only in accordance with Order 47, rule 1 of the Civil Procedure Code5.

Renewal.-There is another provision bearing on this question. Section 42 of the Presidency Act provides that when the court refuses discharge, it may permit the insolvent to renew the application. This power is recognised by the authorities in England also, which hold that the court itself might, when refusing to grant discharge, reserve liberty to the insolvent to apply again,-though the more convenient course is to refuse it altogether and use the power of re-hearing6.

Course adopted.-1t is considered that a power in terms of section 42(1) of the Presidency Act should be conferred on all the courts, and this clause has been framed7 with that object. Section 42(2) of the Presidency Act gives the court power to vary an order, and that has also been adopted in this clause. The words "shall satisfy" have been replaced by "satisfies"-which is more in consonance with modern legislative practice.

1. See Mulla, (1958), p. 387, para. 408.

2. See also Mutchand v. Official Receiver, 1930 1LR 52 All 385.

3. Tobias (in re:), (1891) 1 QB 463.

4. See Williams, pp. 139 and 481.

5. See notes to clause 118.

6. See Williams, p. 139.

7. Cf Mulla, (1958), p. 387, para. 408.

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