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TMI Blog1935 (7) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ee) have, been paid to the plaintiff. Other creditors have received three subsequent instalments at one anna in the rupee, but these 3rd 4th and 5th instalments have been withheld in the present cases. Plaintiff claimed Rs. 4,911-6-0 (at first omitting mention of the second instalment which he subsequently admitted receiving) and subsequent interest thereon amounting to Rs. 810-3-0. The defendants claimed that they had withheld the instalments on account of their lien in respect of a joint and several promissory note executed by plaintiff and another. The trial Court rejected plaintiff's claim for interest and also defendants' claim for a set off and granted a decree for Rs. 4,560 less Rs. 683-14-0, Rs. 3,876-2-0, thus making two errors in calculation on admitted facts; according to the admissions and findings of the Court the decree should have been for Rs. 4,911-5-0 less Rs. 613-14-0. Rs. 4,297-7-0. In the judgment the learned Sub-Judge wrote: 'The decree will be conditional. Plaintiff will be paid Rs. 1,841-10-0, at once on account of the 3rd, 4th and 5th instalments which have not been paid to him, and for the balance he will be paid in due course with other creditors. I th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or memorandum of appeal, it should not be considered; jurisdiction however cannot be conferred by waiver, nor can proceedings taken without jurisdiction be validated or upheld in appeal; we therefore must consider the argument put forward for the appellant. The world "rule" is defined neither in the Companies Act nor the Provincial Insolvency Act, but the relevant portion of the General Clauses Act (X of 1897) reads: "3. In this Act, and in all Acts of the Governor-General-in-Council and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context, (47) "rule" shall mean a rule made in exercise of a power conferred by any enactment and shall include a regulation made as a rule under any enactment." Both the Companies Act (Act VII of 1913) and the Provincial Insolvency Act (Act V of 1920) are acts of the Governor-General-in-Council made after the commencement of the General Clauses Act; there is nothing repugnant therein to the application of the definition of "rule" as given in that prior Act and hence prima facie it should apply. The relevant portion of Section 229, Companies Act, is: "In the winding-up of an insolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down in the Act. We are unable to consider that because a section of an Act of the Indian Legislature is copied from an English Act, it should be interpreted contrary to the statute law of India as contained in another Act, and we are unable to recognise rules under an Act made by a High Court as giving an authoritative indication of the meaning of that Act. Another consideration expressed by King, J., was that Section 228, Companies Act, refers to the "application in accordance with the provisions of this Act or the law of insolvency " whilst Section 229 contains the only provision for such application, from which he was led to believe that there was no distinction between the expressions "rules...............under the law of insolvency" in Section 229 and "law of insolvency" in Section 228. We do not question that conclusion, but we are unable to agree that the expression in Section 229 should be widened so as to include the whole "law of insolvency", rather than that the expression in Section 228 should be narrowed so as to include only "rules" as given in Section 229. Even if we could agree that express provisions of the statute law of India in which there is no apparent ambig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies Act, is permissive, not exclusive, and unless Section 28(2), Insolvency Act, is imported, there is nothing to oust jurisdiction in the pre sent case; we find that the trial Court had jurisdiction to try the suit. The appellants' pleadings show that they claimed to have withheld the payment of the 3rd, 4th and 5th instalments on ac count of a lien which, they alleged, they possessed by virtue of a joint and separate pronote executed by the plaintiff and others in their favour and held by them. In contesting the suit they actually claimed the amount alleged to be due on the pronote as a set of. In the first place as they had paid no court fee in respect of the alleged set off, we consider that the trial Court should not have considered their claim at all; on the merits, however it is conceded not only that the claim based upon the pronote was barred by time at the time of the suit, but that a previous suit by the appellants on the basis of that pronote had been dismissed as being time barred. Counsel for the appellants urges that though limitation bars the remedy for the recovery of a debt, yet it does not extinguish the debt itself, and cites cases reported Sheosaran Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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