TMI Blog1944 (11) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... had committed several acts of insolvency. One of the acts alleged against him was the granting of a fraudulent preference to a creditor (the appellant in the Privy Council). To this creditor he had assigned within three months of the petition asking for his adjudication a decree which he had obtained for ₹ 6,750 and interest. The assignee had hot been given notice of the application for adjudication and had not been made a party to the insolvency proceedings. The date of the order of adjudication was the 13th June, 1939. On the 5th April, 1939, the petitioning creditor obtained a decree against the insolvent for ₹ 15,789-10-0. In the month of May, 1939, the appellant instituted proceedings in execution of the decree which had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Judge hesitated to apply the principle laid down in Ex parte Learqyd1 in view of the fact that the Madras High Court in Official Assignee of Madras v. O.R.M.O.R.S. Firm (1826) 52 M.L.J. 352 : I.L.R. 50 Mad. 541 had held that it did not apply in India, but he found that the intention to prefer had been proved. On appeal a Division Bench of the Calcutta High Court expressed the opinion that Ex parte Learoyd1 did apply. The Privy Council agreed with the appellate Court and consequently their Lordships overruled Official Assignee of Madras v. O.R.M.O.R.S. Firm (1826) 52 M.L.J. 352 : I..L.R. 50 Mad. 541. They held, however, that the appellant was entitled to appeal against the adjudication order and indicated that the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Presidency Towns Insolvency Act, the principle of Ex parte Learoyd1 must be applied to adjudications under the Provincial Insolvency Act, but not otherwise. An examination of the relevant sections shows that there are wide differences between the two Acts. Section 116 of the Presidency Towns Insolvency Act states that a copy of the Official Gazette containing a notice inserted in pursuance of the Act shall be evidence of the facts stated in the notice.. Section 51 says that the insolvency of a debtor' shall be deemed to have relation back to and commence at (a) the time of the commission of the act of insolvency on which an order of adjudication is made against him, or (b) if the insolvent is proved to have committed more acts of ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court do not appear in the corresponding section of the Presidency Towns Insolvency Act, Section 56. 8. Therefore we have these differences between the two Acts : (1) Under the Provincial Insolvency Act, the publication in the Official Gazette of the order of adjudication is not evidence of the fact stated therein as is the case in the Presidency Towns Insolvency Act; (2) the order of adjudication under the Provincial Insolvency Act relates back only to the date of the petition asking for the adjudication, whereas in the Presidency Towns Insolvency Act it relates back to the very act of insolvency itself; and (3) the Provincial Insolvency Act requires a fraudulent transfer to be annulled by a direct order of the Court which is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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