Report No. 26
This is based on section 77 of the Provincial Act (which is more specific than section 126 of the Presidency Act).
Sub-clause (1).-This has been taken from section 100(1) of the Presidency Act, with the alteration that the warrant will be executed in the manner prescribed by the Civil Procedure Code (and not in the manner prescribed by the Criminal Procedure Code as provided in the Presidency Act). This alteration has been made in view of the fact that insolvency proceedings are more in the nature of civil than of criminal proceedings. (There is no such provision in the Provincial Act, but it has been adopted as useful).
Sub-clause (2).-This has been suggested by section 100(2) of the Presidency Act. It is considered that instead of providing (as the Presidency Act does) that a warrant to seize property shall be governed by the provisions of the Criminal Procedure Code, it is more appropriate to provide that the warrant will be executed as a warrant for attachment of movable property in the Civil Procedure Code. The provision does not appear in the Provincial Act, but has been adopted as a useful one.
Sub-clause (3).-This has been taken from section 100(3) of the Presidency Act, with the alteration that the manner of execution has been left to be prescribed (instead of providing that the Criminal Procedure Code will apply). The provision does not appear in the Provincial Act, but appears to be a useful one.
1. This is based on section 68 of the Provincial Act [the corresponding provision in the Presidency Act being section 101 (part and section 86)].
2. As a proceeding under this section is an appeal (and not an application), the words "apply", etc., have been replaced by "appeal"1, etc.
3. The proviso is not found in the Presidency Act, but has been adopted, as a useful provision, from the Provincial Act.
1. Cf. Mulla, (1958), p. 790, para. 834.
General.-This corresponds to section 75 of the Provincial Act, but departs therefrom in one respect namely, the appeal will be to the High Court from certain orders of courts subordinate to district courts.
Hearing without grant to leave.-A question has also sometimes arisen as to the maintainability of an appeal where it has been entertained by the High Court without an express order granting leave under section 75(3). The authorities have mostly held1, that it is not a condition precedent to the maintainability of an appeal under this section that leave should have been obtained before it is preferred, and that, accordingly, when the appeal has been admitted it could be construed as involving the granting of the leave. To avoid any further controversy, it has been made clear that such leave shall, be deemed to have been granted when the appeal has been admitted.
"Debtor".-The word "debtor" has been retained in this clause and preferred to "insolvent", to cover pre-adjudication orders.
Sub-section (3) of section 75, Provincial Act, provides in certain cases for an appeal to the High Court by leave of the District Court or the High Court. The provision for leave of the District Court has been omitted as unnecessary2.
1. See discussion in Mulla, (1958), pp. 779-780, para. 825.
2. See discussion in the body of the Report, para. 6.
This is in general intended to conform to the practice in the original1 side of the High Court in the Presidency towns, and follows section 8(2), Presidency Act and (in part) section 101, Presidency Act.
Sub-clause (3).-As to appeals from decisions of the officer empowered under existing section 6, Presidency Act, the period of 20 days is taken from the existing provision (section 101, Presidency Act), and it has been also provided that it will run from the date of the order.
Sub-clause (4).-As to the period of limitation from appeals of the orders of a Judge to whom insolvency business is assigned, the clause provides for the same period as for Letters Patent Appeals2.
1. As to review of orders of an officer empowered under section 6, Presidency Act, see Mulla, (1958), pp. 737-738, para. 779.
3. See Article 151, (Limitation Act, 1908) and Article 117 (Limitation Act, 1963).
Section 8(1) of the Presidency Act provides generally for a power in court to review, rescind or vary any order made by it. There is no similar provision in the Provincial Act, and in consequence, an application for review of an order passed by an Insolvency court under that Act can be reviewed, by force of section 5 of the Act, only on one of the conditions mentioned in Order 47, rule 1, C.P.C.1-2. The provision in the Presidency Act has been adopted, as comprehensive.
It may be added that the jurisdiction to review under the Presidency Act is very wide1.
1. See also Mulla, (1958), pp. 385-386, para. 408.
2. See Chhaju Ram v. Neki, ILR 3 Lah 27 PC.
3. As to the wide jurisdiction of the court, see-
(a) Mulla, (1958), p. 735;
(b) fivraj v. Gaganmal, AIR 1953 Born 430;
(c) Thangavelu v. Chockalingam, AIR 1944 Mad 129.