GANGJEE PREMJEE AND COMPANY THROUGH ITS PARTNER DEVSHI MUNJI Vs. OLKKNFIRM CONSTISTING OF PARTNERS KANNAPPA CHETTIAR

JUDGEMENT

(1.) This Civil Revision Petition relates to a creditor's insolvency petition presented to the Subordinate Judge of Ramnad. That petition alleged a preferential transfer as the act of insolvency necessary to support it; but the date of that transfer according to the document representing it was more than three months before the date on which the insolvency petition was presented. So with their insolvency petition the creditors presented a petition to excuse the delay under Section 5 of the Limitation Act. That petition the Subordinate Judge dismissed. On appeal the District Judge, feeling himself bound by the decision of a Bench of this Court in A.A.O. No. 523 of 1925, held that Section 5 of the Limitation Act applied to the case and reversed the Subordinate Judge's order and remanded the petition to excuse the delay for fresh disposal. The present Civil Revision Petition is preferred by the transferee concerned against the District Judge's remand order.

(2.) It was decided by a Full Bench of this Court in Lingayya V/s. Chinna Narayana (1917) I.L.R. 41 M. 169 : 33 M.L.J. 566 (F.B.) before the present Provincial Insolvency Act of 1920 came into force, that S,. 5 and other general provisions of the Limitation Act did not apply to insolvency petitions. When the present Provincial Insolvency Act was enacted, a new provision was introduced in Section 78 of the Act, the opening words of which are: The provisions of Secs.5 and 12 of the Indian Limitation Act, 1908, shall apply to appeals and applications under this Act.

(3.) It is contended for the petitioning creditors in this case that under that provision Section 5 of the Limitation Act can be applied to their petition for the adjudication of the debtor. It will be noticed that the new provision in Section 78 of the Provincial Insolvency Act relates to appeals and applications only, as indeed does Section 5 of the Limitation Act. The petitioner before us, the transferee concerned, contends that a creditor's insolvency petition praying that a debtor may be adjudged insolvent is not an application within the meaning of Section 78 of the Provincial Insolvency Act. In considering that question I think in the first place we have to remember that Section 5 of the Limitation Act is in itself an exception to Section 3 of that Act, which directs that suits, appeals and applications presented after the expiry of the periods of limitation prescribed shall be dismissed, and being a provision enacting an exception to a general rule it has to be strictly construed. And in the same way Section 78 of the Provincial Insolvency Act, so far as it applies to Section 5 of the Limitation Act, must also be strictly construed. Remembering that, does the word "application" in Section 78 of the Provincial Insolvency Act include insolvency petitions, i.e., petitions praying that a debtor may be adjudged insolvent?