R M JASSAWALA Vs. AMULYA CHANDRA DUTTA

JUDGEMENT

(1.) The facts of this second appeal are very simple, but they give rise to a nice point of construction of the proviso to Section 78, Provincial Insolvency Act. On 2 April, 1931, the appellant obtained a decree for three thousand rupees odd against the respondent. On 14 May 1931, the respondent filed an insolvency petition under the Provincial Insolvency Act and on 14 August 1931, an order of adjudication was made against him. Almost four years then elapsed and on 5th July 1935 an application was made to the Court for amendment of the adjudication under Section 35 of the Act. On 11 July the appellant, by his agent, submitted a proof of his debt under the decree but the only step the Court took was to give the appellant until 22 July, to file the power of attorney under which his agent had sworn the affidavit in support of the proof. On or before 22nd July, this power of attorney was duly lodged in Court and an order was made by the Court to the effect that the proof should be "filed" and sent to the Official Receiver. On 4th September, the Official Receiver reported to the Court that the debt was due and that the appellant's name might be entered in the schedule. On 25 September- three days later-an order was made annulling the adjudication order.

(2.) In March 1937, the appellant applied in his original suit to execute his decree for Rs. 3000 and was met with the objection that his debt was one which was "provable but" had not been "proved" in the insolvency and that, accordingly, by virtue of the proviso to Section 78 of the Act, he was not entitled to the benefit of Sub-section (2) of the same section in respect of it. The point is a short, but neat, one of pure construction. It turns entirely on the meaning of the word "proved" contained in the proviso. If that word is satisfied by what the appellant had done- namely to lodge his proof in Court-then he is certainly entitled to the benefit of this Section. If, on the other band, the word "proved" can only be satisfied by the formal acceptance of a proof then, it would seem that the appellant is now precluded for ever from executing his decree.

(3.) I do not overlook that it must be admitted that in this particular case the appellant waited nearly four years after the adjudication order was made before lodging his proof and that, when he eventually did so, it was within six days after the application for annulment had been filed. I cannot escape the conclusion that it was only when the annulment application was filed that the appellant woke up to the fact that unless he lodged his proof he might be precluded from ever taking advantage of his decree. I am quite alive to this. But, in my judgment, any dilatoriness on the part of the appellant cannot in any way affect this question which is one of pure construction of the Act. The construction of the Act cannot, in any way, be affected by what the appellant has, or has not, done.