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1911 DIGILAW 207 (ALL)

Jugal Kishore v. Gur Narain

1911-05-31

body1911
JUDGMENT Knox and Piggott, JJ. - A preliminary objection is taken to the hearing of this appeal to the effect that it is time-barred. In support of the objection reliance is placed upon the provisions of section 46 of the Provincial Insolvency Act No. III of 1907. That section in clause (4) lays down that the "periods of limitation for appeals to the District Court and the High Court under this section shall be thirty days and ninety days respectively." It is admitted that the order appealed from falls within the provisions of section 4G. The date on which the order was passed was the 13th of August, 1909. The memorandum of appeal was not presented until the 1st of December, 1909. The period of ninety days had thus expired before the appeal was presented to this Court. But the appellant seeks to call to his aid the provisions of section 12 of Act No. IX of 1908 and wishes to extend the 90 days allowed by section 46 of Act No. III of 1907 by 19 days, the time occupied in obtaining the copy of the order appealed from. The question we have to consider is whether we can apply to the Provincial Insolvency Act of 1907 the provisions contained in parts II and III of Act No. IX of 1908. Section 29 of Act No. IX of 1908 lays down that nothing in this Act shall affect or alter any period of limitation specially prescribed for any suit, appeal or application, by any special or local law now or hereafter in force in British India. Act No. III of 1907 in such a special law, and at first sight it would seem that the provisions of section 29 of Act No. IX of 1908 effectually prevent our applying to the period of limitation specially prescribed in Act No. III of 1907 any of the general provisions contained in Act No. IX of 1908. The question has been several times before the different courts in this country. At one time the Calcutta Court, for instance, was prepared to apply the general provisions of the limitation of the time to special or local laws. In this connection" we may refer particularly to Behari Lall Mookerjee Vs. The question has been several times before the different courts in this country. At one time the Calcutta Court, for instance, was prepared to apply the general provisions of the limitation of the time to special or local laws. In this connection" we may refer particularly to Behari Lall Mookerjee Vs. Mungolanath Mookerjee, (1880) ILR (Cal) 110 But the later trend of rulings in that court has been in the opposite direction; vide Nagendra Nath Mullick v. Mathura Mohun Parhi (1891) I.L.R., 18 Calc., 368. In this court there is only one case that we know of bearing upon the point, namely, Beni Prasad Kuari v. Dukkhi Rai (1904) I.L.R., 23 All., 270. In this case the learned Judges who decided the question held that section 5 of the Indian Limitation Act of 1877 did apply to a suit u/s 93 (a) of the local law, North-Western Provinces Act No. XII of 1881. This case, however, proceeds upon a very special line of reasoning. The learned Judges held that section 5 of the Indian Limitation Act did not extend any period of limitation. It seems that the period prescribed for the suit had expired on a day when the court was closed, and it was held that nevertheless the suit might be instituted on the day when the court re-opened. It was further held that it is impossible to consider that the Rent Act of 1881 constituted by itself a complete code so as to render inapplicable the provisions of the Limitation Act generally to a case under the Rent Act. The Provincial Insolvency Act sets out in its preamble that it is expedient to consolidate and amend the law relating to insolvency in British India as administered by courts having jurisdiction outside the Presidency towns and the town of Rangoon. We think that the Provincial Insolvency Act was intended to be, and is, so far as matters governed by it are concerned, a complete code in itself and retains its own limitation law. If we hold otherwise, it is easy to conceive that cases would occur where we should be asked to apply a section like section 6 of Act No. IX of 1908 to insolvency proceedings, This could never have been contemplated. If we hold otherwise, it is easy to conceive that cases would occur where we should be asked to apply a section like section 6 of Act No. IX of 1908 to insolvency proceedings, This could never have been contemplated. Finally, there is no doubt that if, we were to allow the appellant the period occupied in obtaining the copy of the order appealed against, we should be altering the special period of limitation contained in section 46, clause (4). A good deal of argument on behalf of the appellant turned on the hardship which would arise if we did not allow this period for which he is in no way responsible and which was entirely beyond his control. The answer is that he can always present his petition of appeal and ask for time under the special circumstances to obtain and file subsequently a copy of the order under appeal. As it happens in the present case the appellant had in his hands the copy on the 9th of September, 1909. This Court re-opened after the long vacation on the 26th of October, 1909, and the appeal was not presented until the 1st December, 1909. The special case of hardship owing to the closing of the Court for vacation is moreover met by the provisions of section 10 of the General Clauses Act No. X of 1897. The preliminary objection succeeds and the appeal fails and is dismissed with costs.