Report No. 26

Clause 53

1. This follows section 54 of the Presidency Act, the corresponding provision in the Provincial Act being section 52.

2. There is one point of difference between the two Acts. While under the Presidency Act the decree-holder is given a charge only for costs of the execution which becomes infructuous, the Provincial Act gives him a charge for the costs of the suit also in which the decree was passed. There appears to be no justification for this. There are no grounds for giving a charge for costs of the suit to a decree-holder who moves for execution, while denying it to other decree-holders. The clause accordingly confines the charge to the costs of the execution.

3. It has been made clear that until adjudication the court will stay the proceedings. This is necessary, because the Official Receiver does not, speaking generally, come on the scene until the actual adjudication. Consequently, it has also been provided that the assets will be delivered on adiudication1.

4. The words "court shall, on application" have been replaced by more elaborate wording, "court executing the decree or order shall, on application by any person interested".

5. The provision has been made applicable to orders also2.

1. Cf. Mulla, (1958), p. 598, para. 605.

2. Cf changes made in existing section by clauses 6 and 52.

Clause 54

General.-This deals with voluntary transfers and corresponds to section 55, Presidency Act and section 53 of the Provincial Act. Section 55 of the Presidency Act makes such transfers "void", and its language has been preferred1-2-3 to "that in the Provincial Act which uses "voidable".

Main para.-Under section 55 of the Presidency Act, the period of two years is to be counted up to the date of the adjudication. Read with the doctrine of relation back, this would mean the date of the act of insolvency4. This, however, is not convenient, and the clause under discussion, therefore, speaks of a "petition presented", as in the Provincial Act.

Explanation.-In the case of a document which is registered, the period should be counted from the date of registration. For reasons, see the notes to the clause relating to avoidance of preference5.

1. As to interpretation of "void", see Mulla, (1958), p. 601, para. 608 and p. 655, para. 665. But also see p. 56.

2. Also see Williams Commentary on section 42(1).

3. See discussion in body of the Report, para. 22.

4. Mulla, (1958), p. 615, para. 621.

5. See notes to clause 55.