Report No. 26
Clause 96
This follows section 80(1), Provincial Act with the omission of mention of power to admit or reject proof.1 The requirement of previous sanction of the State Government, is omitted as unnecessary.
Section 80(2) of the Provincial Act provides that subject to appeal to the court under section 68, any order made or act done by the Official Receiver in the exercise of the said powers shall be deemed to be the order or act of the Court. ...The words "subject to appeal", etc., have been interpreted2 to mean that even from orders under these delegated powers, an appeal lies to the court.
The juxtaposition of the words "shall be deemed to be the order of the court" with the words "subject to", etc., however, creates a wrong impression. In view of the fact that the matters on which the order can be passed under the clause in question are of great importance, the orders should be appealable. To make that clear, section 80(2) of the Provincial Act has been omitted3-4.
1. Under the Second Schedule, the power to admit, etc., proof is to vest in the Official Assignee.
2. Mulla, (1958), pp. 794-795, para. 844.
3. This is one of the two courses suggested by Mulla, (1958), p. 794-795, para. 844.
4. As to delegation by High Courts, see clause 110.
Clause 97
General.-Original jurisdiction of High Courts.-In the Presidency Towns, insolvency jurisdiction will continue to be exercised by the High Courts on their original side.1
Sub-clause (1).-Subordinate Courts.-Combines section 3(1), P.A. and section 3, P.T.A. As to the proviso, reference may be made to observations contained in an earlier Report of the Law Commission as follows2:-
"We recommend that all civil Judicial officers may be invested with insolvency jurisdiction. Such powers have been conferred upon these officers in Bombay and Madras."
But this does not require a change in the Law. A detailed discussion as to jurisdiction of subordinate courts is unnecessary here3.
Sub-clause (2).-Follows section 3(2), P.A.
1. See discussion in the body of the Report, paras. 7-8.
2. 14th Report of the Law Commission (Reform of Judicial Administration), Vol. I.
3. See discussion in the body of the Report, para. 6.
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