BALAJI Vs. GOPAL MALI

JUDGEMENT

(1.) ONE Gunaji, the father of the respondent, Gopal, was adjudged an insolvent on 3rd July 1922 and was given a year for applying for discharge. He applied accordingly on 26th June 1923. On 28th August 1922 a schedule containing the names of five creditors had been prepared; one of these was the father of the present appellants, by name Bhanudas. They applied on 3rd November 1923 to be added and attacked a sale of property that had been held and was pending for confirmation. On 16th September 1923 the Court, under circumstances which are clear from the lower appellate Court's judgment ordered the property to be sold free from the mortgage concerned. On 15th January 1923, Bhanudas died. The sale was held on 14th February 1923, and was confirmed on 7th April 1923, and Gopal, the auction-purchaser and son of the insolvent, was given his sale certificate on 13th June 1923. Meanwhile, a house was sold and this sale was confirmed on 18th August 1923. but, before this, the insolvent applied for discharge. On 3rd November 1923, the present appellants filed their application of 3rd November 1923 referred to above. The question involved, therefore, is whether this application was time-barred or not. The appellants in this connexion rely on Article 181 of the Schedule to the Limitation Act, while the respondent) relies on Article 166. The Judge of the first Court remarked that, if the application in question had been one under the Civil P.C., Article 177, would primarily have applied but there would have been no extension of time in respect of minority of Shanker, one of the appellants, as under Section 6 (1) of the Limitation Act no question of filing a suit or an application for execution of a decree was involved. He further pointed out that Section 78 of the Provincial Insolvency Act restricted the application of the Limitation Act, in insolvency proceedings. The Subordinate Judge, after considering certain case law on the point, decided that the Limitation Act as such, did not apply; but he held that he had inherent powers to admit the application, particularly as a minor was concerned. On further considering the merits of the case he ordered the sale to be set aside and refused to discharge the insolvent.

(2.) THE District Judge held that the sons of Bhanudas were entitled to be brought on the schedule in place of their father, the change being a mere substitution and not the addition of a new creditor or creditors. On the further question, whether they were, even on 3rd November 1923, entitled to attack the sale, he held that the application lay, if at all, under Article 166 read with Order 21 of the Civil P.C., the limitation in either case being thirty days.

(3.) I may add that the Judge of the first Court was clearly wrong in having recourse to the inherent powers of the Court in the way he did. The appellants had their remedy otherwise provided and had neglected to make use of it: (cf. Joshi Shib Prakash v. Jhinguria A.I.R. 1924 All. 446.