AIYAPARAJU ALIAS AYYAPPA Vs. VEEVA VENKATAKRISHNAYYA

JUDGEMENT

(1.) This is an appeal against an order of adjudication under the Provincial Insolvency Act. The insolvency petition, from which originated the District Judge's proceedings, was one presented by a creditor under Section 6(4) of Act III of 1907.

(2.) It was first presented on June 28th, 1919 to the District Munsif of Razole who had no jurisdiction to entertain it. Having been returned by that Court on September 22nd, 1919 it was represented to the District Court on October 1st, 1919 which had jurisdiction under Section 3. One of the pre-requisites for the valid presentation of a creditor's petition is that contained in sub clause (c) to Clause 4 of Section 6, namely that the act of insolvency which forms the ground of the application should have occurred within 3 months of the date of presentation of the petition. The act of of insolvency put forward in this case as the basis of the petition was a transaction of sale, of the debtor's property on March 31st, 1919 alleged to have been made with the intent of defeating his creditors. The Razole District Munsif had been invested under Section 3 of the Act with jurisdiction only over debtors insolvency petitions. When this creditor's petition was presented to a Court having jurisdiction, more than 3 months had elapsed since the commission of the act of insolvency upon which the petition was grounded. Thus the petition was liable to be rejected as out of order. But the District Judge, on a petition to excuse delay being presented on February 21st, 1921, acted under Section 5 of the Limitation Act, and holding that there was "sufficient cause"for the petition not being presented earlier, excused the delay and proceeded to enquire into the merits of the case. In Lingayya V/s. Chinna Narayana (1917) I.L.R.41 M,169 : 33 M.I.J. 566 (FB) a Full Bench of this Court laid down that the general provisions of the Indian Limitation Act, which include Section 5, were not applicable to petitions under the Provincial Insolvency Act (III of 1907).

(3.) After the pronouncement however, a new Provincial Insolvency Act (V of 1920) was passed and came into force on February 25th, 1920, the old Act being simultaneously repealed.