Report No. 26
Clause 100
This is based on section 5 of the Provincial Act. The corresponding provision in the Presidency Act is section 90(1).
The proviso to section 90(1) of the Presidency Act says that the general provision that the court will have the like powers, etc., as in its original jurisdiction is not to limit in any way the jurisdiction conferred on the court under the Act. What this presumably means is, that any extra powers given by the other provisions of the Act are not to be prejudiced by the general provision referring to the Code of Civil Procedure.
The Provincial Act uses the words "subject to the provisions of this Act"; and it is considered that these words would save any other power given by the other provisions of the Act, and would, thus, have the same effect as the proviso in the Presidency Act. For this reason, the language of the Provincial Act has been adopted.
Clause 101
This corresponds to section 90, sub-sections (4), (5), (6) and (7), Presidency Act.
Clause 102
This is not found in the Provincial Act, and is based on section 18A of the Presidency Act. That section was introduced by section 3 of the Amending Act (10 of 1930) to remedy an evil which had become rampant in Bengal. Fraudulent debtors in Calcutta got themselves adjudicated in the mofussil courts through petitions presented by friendly creditors, so as to avoid effective investigation by the High Court, and it has been held in a number of cases that the High Court on its original side had no power to transfer those proceedings to its file. Vide in re Manekchand, AIR 1922 Born 390; In re Naginlal Maganlal jaichand, AIR 1925 Born 543, Official Assignee of Madras v. Zamindar of Lidayarpalayam, AIR 1926 Mad 150; Sarat Chandra Pal v. Barlow and Co., AIR 1928 Cal 782. It is to remedy this evil that section 18A was enacted. This provision has been included in this draft as the High Courts in the Presidency Towns will continue to have jurisdiction to entertain insolvency petitions on its original side1.
Receivers are not, under the scheme of the draft2, appointed by the court on ad hoc basis, but are permanent officers, and the property vests in them and never in the Court. In view of this position, necessary verbal changes have been made in the clause.
1. See clause 97.
2. See clause 88.
Clause 103
See section 14, P.A. and sections 13(8) and 15(2), P.T.A.
It has been made clear, that an order permitting withdrawal cannot be made after adjudication1.
1. Cf. Mulla, (1958), p. 212, para. 228.
Clause 104
Sub-clause (1).-This topic is dealt with in section 15 of the Provincial Act, and section 91 of the Presidency Act. The latter section provides also for consolidation of separate petitions presented by joint debtors. (There is nothing corresponding to this in section 15 of the Provincial Act.) It has been incorporated in this clause.
Sub-clause (2).-Sub-clause (2) is based on section 97 of the Presidency Act. (There is no such provision in the Provincial Act).
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