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Judgment
Waller, J.—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, u/s 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 u/s 36 to compel a witness residing over 200 miles from Madras
to attend and give evidence.
After the argument had been addressed to me on this section Mr. V. Vaardaraja Mudaliar, on behalf of the Official Assignee, said that the
summons in this case was not issued or applied for u/s 36 of the Act, but was applied for u/s 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.
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 u/s 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 u/s 36 of the 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 u/s 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 Sections 36 and 37 of the Insolvency Act together and also the Original Side Rules, the Court is governed by Order
XVI of the Code and by the Original Side Rules in respect of orders u/s 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 of the 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 the laws relating to insolvent debtors. I shall refer later to some cases cited by
Mr. V. Varadaraja Mudaliar in which it had been held that Insolvency Courts in India have jurisdiction throughout the British dominions, but it
should be noted here that, if the Insolvency Court has jurisdiction throughout the British dominions, the wording of Clause 18 of the Letters Patent
only gives the judge in insolvency power to exercise jurisdiction within the Presidency of Madras. The point, however, I wish to emphasise is this.
The Insolvency Court, or the Court for the Relief of Insolvent Debtors, is not constituted by Clause 18 of the Letters Patent, but that that clause
gives one of the Judges of the High Court the power to exercise jurisdiction under the Insolvency Act. Jurisdiction to grant relief to insolvent
debtors in India is derived from an Act of Parliament of 1829 known as the first Indian Insolvent Act. The court has a separate existence from the
Supreme Court, but it was presided over by a Judge of the Supreme Court. In 1848 the Indian Insolvency Act was passed and the Insolvency
Courts were continued by it and the court was to be held on before any one Judge of the Supreme Court. This Act of 1848 was in force in 1862
when the High Court was established and the effect of Clause 18 is to give a Judge of the High Court instead of a Judge of the Supreme Court
power to exercise jurisdiction in the Insolvency Court. Similarly under the present Act, Section 3, it is provided that the court having jurisdiction in
insolvency under the Act shall be the High Court and that the jurisdiction shall be exercised by one of the Judges assigned by the Chief Justice u/s
4.
Under the old Act, therefore, the Insolvency Court was established by the Act and the Judges of the Supreme Court and later the High Court
were authorised by the Letters Patent to exercise jurisdiction. Under the present Act jurisdiction is given by the Act and it is to be exercised by the
Judge assigned by the Chief Justice.
So far as the framing of rules is concerned, Section 76 of the Indian Insolvency Act, 1848, gave power to His Majesty''s Supreme Courts to
make all necessary and reasonable rules not inconsistent with the provisions of the Act for facilitating and carrying into effect the relief intended to
be given by the Act, and under the present Act, Section 112, the courts having jurisdiction under the Act, that is, High Courts, have power to
make rules for carrying into effect the objects of the Act. I do not consider it necessary for me to state here whether the High Court has power to
frame a rule to the effect that a summons may be issued u/s 36 to compel a witness, who resides more than 200 miles from Madras, to attend and
give evidence. It is sufficient, for me to state that whether the court has, or has not, this power, it has framed no rules to this effect. There is nothing
in the insolvency rules on the subject and it is therefore necessary to refer to the Original Side Rules to determine the question, as, u/s 90 of the
Presidency Towns Insolvency Act, it is provided that, in proceedings under the Act, the court shall have like powers and follow the like procedure,
as it follows in the exercise of its ordinary civil jurisdiction.
Has the High Court, in the exercise of its ordinary original civil jurisdiction, provided for a procedure by which a witness, who resides at a
distance of more than 200 miles from Madras, can be compelled to attend before it? There is no such rule on the Original Side and the practice is
not to issue subpoenas to witnesses, who reside more than 200 miles from the court, to attend. The question, however, is not one of practice.
Order 1, Rule 3 of the Original Side Rules, provides that ""the provisions of the Code so far as such provisions are inconsistent with these rules and
forms are repealed."" In other words, the provisions of the Code apply to the Original Side unless they are inconsistent with the rules. It is only
necessary to refer to Sections 117, 121 and 129 and Order 49, Rule 3 of the Code, to see that this is so. The Code. is generally applicable to the
High Court in the exercise of its ordinary original civil jurisdiction except where it is specifically excluded, or where the High Court itself has made
rules superseding any particular provisions of the Code.
The result is that Order 16 of the Code (with the exception of Rule 2 of the Order, which has been excluded by Order 49, Rule 3 (3) of the
Code) applies to the High Court in the exercise of its ordinary original civil jurisdiction and that the Insolvency Court must follow the same
procedure u/s 90 of the Act. The Insolvency Court has not by its rules provided for a procedure under which a witness, who resides more than
200 miles from Madras, can be compelled to appear before it. I, therefore, hold that a summons cannot be issued to a person, who resides more
than 200 miles from Madras, directing him to attend and give evidence u/s 36.
The decision cited by Mr. V. Varadaraja Mudaliar, In re Coswasjee Ookerjee ILR (1888) B 114, does not, in my opinion, apply. In that case,
the application was to direct the insolvent, who had submitted to the jurisdiction of the court, to attend for examination. In the present case, the
application is to direct a stranger to the insolvency proceedings to attend before the court and the Insolvency Court has wider powers to enforce
the attendance of an insolvent than it has over a stranger to the proceedings. In In re Naoroji Sorabji Talati ILR (1908) B 462 it was held that the
Insolvent Debtors'' Court at Bombay can order the examination of the witness in Shanghai, but cannot direct a witness at Shanghai to come to
Bombay to be examined. The position in the present case is practically the same as, although the court can order the examination of the witness,
there is no machinery by which he can be compelled to attend. In In re Ganeshdas Panalal ILR (1908) B 198 it was also held that the court has
jurisdiction to make an order u/s 26 of the old Act against persons holding the property of the insolvent and who are outside the Bombay
Presidency. The question in the present case is not the distance to which the orders of the court extend, but up to what distance the attendance of a
stranger to the insolvency can be enforced. Again the decision in Official Assignee, Bombay v. Registrar, Small Causes Court, Amritsar (1910) LR
37 IA 86 : 1 LR 37 C 418 : 1910 20 MLJ 432 lays down that the Imperial Act conferred jurisdiction upon the High Courts in Insolvency over the
whole of India and for some purposes over much wider limits. The question in the case was whether the property in the Punjab had vested in the
Court so as to exclude the operation of the Bombay vesting order, and the Privy Council held that the property had vested in the Official Assignee,
Bombay. The case is not of much assistance in disposing of the present question. The case Abdul Khader v. Official Assignee, Madras ILR
(1916) M 810 relates more to jurisdiction than to procedure and it decides that the court has jurisdiction to adjudicate on claims relating to
Immovable property situate outside the limits of the ordinary original civil jurisdiction. There is nothing in that decision to indicate whether or not a
witness, who resides over 200 miles from the court, can be summoned to attend and give evidence. The Full Bench decision in I. P. No. 267 of
1923 affirms Abdul Khader v. Official Assignee, Madras ILR (1916) M 810, and holds that the Insolvency Court has jurisdiction u/s 7 of the Act
to decide questions in insolvency where the garnishee lives outside its jurisdiction and that Clause 12 of the Letters Patent does not affect the
provisions of Clause 18.
I do not think that the question that the court has a discretionary power to decide claims to property or claims against persons outside its
jurisdiction is material to the present question, which is whether the court can enforce the attendance of a witness.
The second point raised by Mr. V. Varadaraja Mudaliar in his argument is that his summons is not being issued u/s 36, but u/s 7 of the Act"".
On this point, I say that Section 7 merely confers jurisdiction to decide all questions that may arise in an insolvency, but it does not provide for a
procedure by which strangers to the insolvency proceedings can be brought before the court. The only section, which so provides, is Section 36. I,
therefore, hold that a summons cannot be issued u/s 7 of the Act.
After I had passed the above order, Mr. Albuquerque drew my attention to a case, not cited by Mr. V. Varadaraja Mudaliar, Dinaram
Somani v. Bhim Bahadur Singh (1923) 27 CWN 370, in which it has been held that the High Court, Calcutta, has jurisdiction to summon
witnesses residing more than 200 miles from Calcutta u/s 36 and that Order 16, Rule 19 of the Code of Civil Procedure, does not apply to
summonses u/s 36. This decision is in conflict with the judgment in O.S. A. No. 30 of 1917 of the Madras High Court in which it has been held
that, in respect of orders u/s 36 of the Act, the court is governed by the provisions of Order 16 of the Code and by any rules relating to the same
matter to be found in the Original Side Rules.
The result of all the decisions appears to me to indicate that the High Court has jurisdiction to try questions that arise even though they arise
over 200 miles from Madras and jurisdiction to examine witnesses residing over that distance, but there is no procedure or machinery by which a
witness can be compelled to come to Madras from a distance of over 200 miles.
As, however, the matter is one of great importance to the Official Assignee and to the profession, I think the most satisfactory course is to refer
the matter to the Court for a ruling.
JUDGMENT
I say nothing about the case of a person who is to be summoned as a mere witness u/s 36 of the Act, for that case does not arise. The person
to be summoned here is not a mere witness, but a person supposed to be a debtor to the insolvent''s estate. There is, as was observed in In re
Appleton, French and Scrafton, Ltd. LR (1905) 1 Ch. 749, a litigation between him and the Official Assignee. Vide also Ex parte Waddell : In re
Lutchscher (1877) LR 6 Ch. D 328 where the same distinction is made. My answer to the reference is that the court has jurisdiction to summon
the party.
Taxed costs out of estate.