DROPADI Vs. HIRA LAL

JUDGEMENT

(1.) One Ram Narain was declared to be insolvent by the Court of Small Causes, Cawnpore, and the respondent was appointed to be Receiver of his estate. On the application of the respondent, under Section 37 of the Provincial Insolvency Act certain transfers made by the insolvent in favour of the applicant were set aside by an order, dated March 18th, 1911. The applicant presented an appeal to the District Judge on April 26th, 1911. His appeal was within limitation only if he was entitled under Section 12 of the Limitation Act to deduct the time spent by him in obtaining a copy of the order of the Court of first instance. The District Judge, following the decision of Knox and Piggott, JJ. in Jugal Kishore v. Gur Narain 33 A. 738 : 8 A.L.J. 833 : 11 Ind. Cas. 197 held that the applicant was not entitled to the benefit of Section 12 of the Limitation Act. Accordingly, he dismissed the appeal. This is an application for revision of the order of the District Judge. It has been treated by the office as a first appeal from an; order, but it is an application under the proviso to Section 46(1) of the Provincial Insolvency Act.

(2.) In the course of their judgment in the case cited, Knox and Piggott, JJ., say that the only case in this Court bearing on the point, of which they are aware, is that of Beni Prasad Kuari v. Dharaka Rai 23 A. 277 (the actual reference is to a case reported at page 270 of the same volume, but this was evidently a slip). They distinguished that case on the ground that it proceeded on a very special line of reasoning. It seems to us that the decision of Strachey, C.J., and Banerji, J. in Beni Prasad Kuari v. Dharaka Rai 23 A. 277 proceeded upon two grounds, namely, that Section 5 of the Limitation Act of 1877 did not, within the meaning of Section 6 of that Act, affect or alter" a period of limitation prescribed by the North-Western Provinces Rent Act of 1881, and that the latter Act could not be considered a complete Code in itself so as to render the general provisions of the Limitation Act inapplicable. Knox and Piggott, JJ., held that if Section 12 of the Limitation Act were applied to an appeal under Section 46 of the Insolvency Act, it would, within the meaning of Section 29 of the present Limitation Act, affect or alter the period of limitation prescribed for an appeal under the Insolvency Act. As the language of Section 29 of the present Limitation Act, is, to all intents and purposes, the same as that of Section 6 of the Limitation Act of 1877, the decision of Knox and Piggott, JJ., conflicts with that of Strachey, C.J., and Banerji, J., upon a question of the correct construction of the Limitation Act, which is of considerable importance. It also conflicts with the decision of Banerji, J. in Joti Sarup v. Bam Chander Singh A.W.N. (1092) 34 which was not brought to their notice.

(3.) The question has been argued very fully before us, and our attention has been drawn to a large number of decisions bearing upon it. For the applicant, it has been contended that the Provincial Insolvency Act is not a special law within the meaning of Section 29 of the Limitation Act, and that even if it is a special law , the application of Section 12 of the Limitation Act, to the appeal in this case, does not, within the meaning of Section 29 of that Act, affect or alter the period prescribed for an appeal under Section 46 of the Provincial Insolvency Act.