OFFICIAL ASSIGNEE OF MADRAS Vs. GRAMANUJAYYA

JUDGEMENT

(1.) Application for summons against Goday Ramanujayya, Cloth Merchant, Amalapuram, Godavery District. The question originally raised was as to the regularity of issue of this summons and whether the Official Assignee is entitled to apply for the issue of a summons, under Section 36 of the Act, to compel a witness under that section to appear when such witness resides at a distance of over 200 miles from the Court House. In other words, can a summons be issued under Section 36 to compel a witness residing over 200 miles from Madras to attend and give evidence.

(2.) After the argument had been addressed to me on this section Mr. V. Varadaraja Mudaliar, on behalf of the Official Assignee, said that the summons in this case was not issued or applied for under Section 36 of the Act but was applied for under Section 7 of the Act, or, in the alternative, that it was applied for under either Section 36 or Section 7. As the matter has been fully argued before me, I shall record my views on both sections and discuss the various authorities cited before me.

(3.) The first case referred to is the judgment in O.S. A. No. 30 of 1917. That is an unreported case in which it was held that a summons under Section 36, when it merely asks for production of documents, can be issued, as there is no question of the attendance of a witness, as it is always possible for the documents required to be sent by post or by a messenger. That decision does not decide that the Court has, or has not, power to issue a summons to compel the attendance of a witness, who resides over 200 miles from Madras, but it merely draws a distinction between a summons to produce and a summons to attend and give evidence and holds that a summons to produce whether under the Code or under Section 36, Insolvency Act, can be issued, as the order can be complied with by causing the document to be produced, which, under Order 16, Rule 6 of the Code, is a sufficient compliance of the summons. The judgment, therefore, cannot be looked upon as a decision that a summons to give evidence under Section 36 can, or cannot, be issued where a witness resides more than 200 miles from Madras. The important words in that decision appear to be the portion in which it is stated that reading Secs.36 and 37, Insolvency Act, together and also the original side rules, the Court is governed by Order 16 of the Code and by the original side rules in respect of orders under Section 36. Mr. V. Varadaraja Mudaliar contends that Section 36 is not controlled by the provisions of the Code. He contends that the insolvency Court is constituted under Clause 18, Letters Patent. I do not agree with him. The Court for the relief of insolvent debtors was established by the Act of 1848, which was in force before the Letters Patent were framed. What happened was that certain laws are constituted by certain enactments relating to insolvent debtors in India and Clause 18 provides for the execution by one of the Judges of the High Court of laws relating to insolvent-debtors.