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Attorney(S)

Mr. A. Krishnaswami Aiyar for the Advocates.
Mr. F. S. Vaz for the Barristers.
Mr. V. V. Srinivasa Aiyangar for the Attorneys.

Judges

Sir Murray Coutts Trotter
Kt.
C. J.
Sir C. V. Kumuraswami Sastriar
Kt.
Pakenham Walsh, JJ.

Acts

Sect. 3 of the Indian Insolvency Act or Sect. 121 of the Presidency Towns Insolvency Act
provisions of the Bar Councils Act.Sect. 2 (a) of the Bar Councils Act
PRESIDENCY TOWNS INSOLVENCY ACT
Rules 128 and 129 of the insolvency rules referred
Sect. 121 of the Presidency Towns Insolvency Act
Indian Insolvency Act (11 and 12 Vict. Ch. 21)
Sect. 3 of the Indian Insolvency Act
BAR COUNCILS ACT
Indian Bar Councils Act of 1926
PRESIDENCY TOWNS INSOLVENCY ACT
Councils Act by Sect. 19 (2)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The panel was asked to determine whether persons enrolled as Advocates under the Indian Bar Councils Act of 1926 are entitled to "act" (in addition to pleading) in the insolvency jurisdiction of the Madras High Court. At the time the Bar Councils Act came into force, the local insolvency rules of the Madras High Court (Rr. 128 and 129) permitted an advocate only to appear and plead, while attorneys could appear, plead and act (though attorneys were not allowed to appear or plead at a hearing). The question arose because the Bar Councils Act generally entitles enrolled advocates to "practise" in the High Court, and the parties disputed whether that statutory entitlement displaced the prior rule-based restriction in the insolvency jurisdiction. The judgment of Sir C. V. Kumaraswami Sastriar (Kumaraswami Sastri) is delivered and concurred in by the Chief Justice and Pakenham Walsh, J.

Legal Issues Presented

Whether Advocates enrolled under the Indian Bar Councils Act of 1926 are entitled to act (not merely plead) in the insolvency jurisdiction of the Madras High Court.
Whether the Indian Insolvency Act and the Presidency Towns Insolvency Act limited or curtailed the High Court's power to permit Advocates to act in the Insolvency Court.
Whether the Bar Councils Act (particularly Sects. 8, 14 and the definition in Sect. 2(a)) supersedes or renders repugnant pre-existing High Court rules (notably Rules 128 and 129 of the Insolvency Rules) that confined Advocates to pleading only in insolvency proceedings.
Whether any saving clauses (e.g., Sect. 19(4) of the Bar Councils Act or Sect. 121 of the Presidency Towns Insolvency Act) preserve the pre-existing restriction on Advocates acting in insolvency matters.

Arguments of the Parties

Advocates' Arguments

Relying on Sects. 8 and 14 and the definition of "Advocate" in Sect. 2(a) of the Bar Councils Act, Advocates contend they are entitled as of right to "practise" in the High Court.
They assert that the ordinary meaning of "practise" includes the right to appear, act and plead.
Because the Bar Councils Act does not differentiate between jurisdictions of the High Court or limit the term "practise," existing rules preventing Advocates from acting in the insolvency jurisdiction should no longer operate after the Act came into force.

Attorneys' Arguments

The insolvency jurisdiction of the High Court is a separate jurisdiction originating in the Indian Insolvency Act (11 & 12 Vict. Ch. 21), and later transferred to the High Court by the Presidency Towns Insolvency Act of 1909.
Under the Indian Insolvency Act, historically, Advocates were only entitled to plead while Attorneys were entitled to act; Sect. 3 of the Indian Insolvency Act and Sect. 121 of the Presidency Towns Insolvency Act preserved those rights on transfer.
The Bar Councils Act does not purport to deal with insolvency jurisdiction or to alter the special enactments; therefore it cannot be used to give Advocates a larger right of audience than existed immediately prior to the Act.
If the Bar Councils Act applies, Sect. 19(4) saves rules in force which are not inconsistent with the Act; the High Court's rules confining Advocates to plead in the Insolvency Court are not inconsistent and thus remain operative.
As a general statutory principle, later general enactments should not control or affect earlier special enactments (this contention was raised but the court found it unnecessary to decide on those authorities).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
T. Namberumal Chetty v. M.P. Narasimhachari	Traces history of legislation concerning rights of advocates, attorneys and vakils; addressed rights of vakils and attorneys.	The Court relied on this decision for a clear tracing of legislative and rule history relevant to Original Side and insolvency jurisdiction; it supported the proposition that the High Court possessed and exercised rule-making power regarding practitioners.
In the Matter of the Petition of the Attorneys	Addresses the High Court's competence to frame rules empowering vakils/attorneys on the Original Side.	The Court treated this as authority affirming the High Court's power to make rules about practitioners' functions and noted that a Full Bench as early as 1875 considered such powers.
Krishnaswami Ayyar v. Swaminatha Ayyar	Considered the right of vakils to practise in the insolvency side; a Full Bench decision.	The Court recorded that a Full Bench of the Madras High Court negated the right of vakils to practise in the insolvency side; used as background on how other Presidencies dealt with vakils/advocates.
Laurentius Ekka v. Dhuki Koeri (Jwala Prasad, J.)	Held that the word "practise" includes the right to appear, plead and act (in context of Legal Practitioners Act 1879, Sect. 4).	The Court cited this decision for the ordinary meaning of "practise" as including appearance, acting and pleading and applied that meaning to the Bar Councils Act's use of "practise."
Bakhtawar Singh v. Sant Lal	Held that advocates can act and plead unless restricted by rules framed by the High Court.	The Court relied on this authority to support the proposition that advocates' ability to act and plead is subject to any valid restrictions in High Court rules; used to contrast the statutory entitlement to "practise" with rule-made limitations.
Reg v. Bird, Ex parte Needes (Wills, J.)	Principle that regulations made by a public body under statutory power cannot abridge a right conferred by the statute itself.	The Court quoted this passage to support the view that rules or regulations cannot cut down statutory rights; used to show that rules restricting a broadly conferred statutory right would be repugnant.
Toronto (City) Municipal Corporation v. Virgo	Cited in support of the general principle about limitations on subordinate regulations affecting statutory rights.	The opinion refers to this case but does not set out details of its principle or a detailed application; the Court listed it alongside other authorities on the principle that subordinate rules cannot abridge statutory rights.

Court's Reasoning and Analysis

The court undertook a statutory and historical analysis, reasoning step-by-step from the constitutional and rule-making powers of the Madras High Court to the meaning and effect of the Bar Councils Act:

Historical and constitutional basis: The Charter Act of 1800 and the Letters Patent that created the Madras High Court gave the Court power to approve, admit and enrol advocates, vakils and attorneys and to determine by rules whether those persons might "plead", "act" or both. Although the Supreme Court under the Charter had theoretical power to enrol advocates who could act and plead, in practice advocates were empowered only to plead; the Letters Patent transferred and preserved the rule-making competence in the High Court.
Existing insolvency rules and practice: At the date of the Bar Councils Act, Madras insolvency rules (R.128 and R.129) allowed advocates to appear and plead but did not authorise them to "act" in insolvency proceedings; attorneys were permitted to act under those rules. Comparable provisions in Bombay and Calcutta showed different local approaches.
Effect of the Indian Insolvency Act and Presidency Towns Insolvency Act: The court examined Sect. 3 of the Indian Insolvency Act and Sect. 121 of the Presidency Towns Insolvency Act and concluded that those provisions did not curtail the High Court's power to frame rules permitting advocates to act and plead. The phrase "shall be entitled to practise in the way of his profession" in Sect. 3 was construed to mean entitled to practise as advocate or attorney as before, and not as a statutory bar preventing the High Court from empowering advocates to act.
Statutory effect of the Bar Councils Act: The court analysed the Bar Councils Act provisions (definition of "Advocate" in Sect. 2(a); Sect. 8 on enrolment and entitlement to practise; Sect. 14 on the entitlement "to practise" in the High Court; Sect. 9 and Sect. 19(4) on rule-making and savings; and Sect. 19(2) which repealed Letters Patent provisions related to enrolment). The court observed that, for Madras, the Act made no distinction between different jurisdictions of the High Court and did not grant the Madras High Court power to limit advocates to pleading only in the original or insolvency sides.
Ordinary meaning of "practise": The court adopted authorities holding that "practise" ordinarily includes the rights to appear, act and plead, and applied that meaning to Sects. 8 and 14 of the Bar Councils Act.
Repugnancy of inconsistent rules: The court concluded that rules which cut down statutory rights (i.e., rules that restricted advocates to pleading alone when the statute conferred the broader right to "practise") would be repugnant to the Act. The court relied on the principle articulated in Reg v. Bird, Ex parte Needes that subordinate regulations cannot abridge statutory rights.
Overall conclusion reached by the bench: Because there was no statutory bar in the insolvency enactments preventing the High Court from enabling advocates to act, because the Bar Councils Act conferred the entitlement to "practise" and because the Madras High Court had no saved rule-making competence limiting advocates in the manner of Bombay and Calcutta, the court held that advocates enrolled under the Bar Councils Act are entitled to act and plead in the insolvency jurisdiction of the Madras High Court.

The Chief Justice expressly concurred with the reasoning and judgment of Kumaraswami Sastri, noting that the object of the Bar Councils Act was to place practitioners on the same footing and that it would be anomalous to treat insolvency jurisdiction differently. Pakenham Walsh, J. also agreed and added nothing further.

Holding and Implications

Holding: The court held that Advocates enrolled under the Indian Bar Councils Act of 1926 for the Madras High Court are entitled to act as well as to plead in the insolvency jurisdiction of the Madras High Court.

Implications:

Direct effect on the parties and practitioners: Advocates enrolled under the Bar Councils Act for the Madras High Court may appear, act and plead in insolvency matters of the High Court; the prior confinement of Advocates to pleading only (under Rr. 128 and 129) cannot be relied on to prevent them from acting if that confinement is inconsistent with the Bar Councils Act.
Statutory reconciliation: The court found no need to amend or repeal Sect. 3 of the Indian Insolvency Act or Sect. 121 of the Presidency Towns Insolvency Act before Advocates can be allowed to act; those insolvency enactments did not operate as a statutory bar to the High Court or the legislature altering the practitioners' rights.
Scope and precedent: The opinion resolves the entitlement of advocates to act in the Madras High Court's insolvency jurisdiction under the Bar Councils Act. The judgment focuses on statutory interpretation and rule repugnancy; the opinion does not purport to announce or discuss broader implications beyond resolving the entitlement in question in Madras.

Bench composition and concurrence: The judgment of Sir C. V. Kumaraswami Sastriar was delivered, with the Chief Justice concurring and Pakenham Walsh, J. agreeing as well.

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Re v. Powers Of Newly Enrolled Statutory Advocates.

The Chief Justice. — I have had the advantage of reading the judgment about to be delivered by my brother Kumaraswami Sastri and I entirely agree with it. It is clear that the object of the Act must be taken to have been to put all classes of practitioners on the same footing and if the insolvency jurisdiction of the Original Side were to be held to be on a different footing as regards the right of audience from the rest of its jurisdiction it would obviously have been an anomaly left outstanding by the Act per in curiam. I confess that such a result would not have surprised me in so ill-considered and ill-drafted a measure as the Bar Councils Act. Moreover, with the mass of evidence collected by the Bar Committee in 1923-1924 it is remarkable that those responsible for the Bar Councils Act made no attempt whatever to provide for the peculiar state of things obtaining in the Madras High Court which has no parallel in any other High Court in India. But I agree with my learned brother that we are not driven to hold that this anomaly still persists and I therefore concur in his judgment.

Sir C. V. Kumaraswami Sastriar, Kt., J.—The question for determination is whether the Advocates enrolled under the Indian Bar Councils Act of 1926 are entitled to act in the insolvency jurisdiction of the High Court. Under the rules as they now stand they are only entitled to plead.

The contention of the Advocates is that having regard to Sects. 8 and 14 and the definition of Advocates in Sect. 2 (a) they are as a matter of right entitled to practise in the High Court, that the word ‘practise’ in its ordinary meaning carries with it the right to appear, act and plead and that, there being no differentiation of jurisdiction so far as the Bar Councils Act is concerned and no limitation placed on the word ‘practise’ in the Act, the rules hitherto in force which prevent Advocates from acting in the insolvency jurisdiction can no longer prevent them from acting after the Act has come into force.

For the Attorneys it is argued that the insolvency jurisdiction of the High Court is a separate jurisdiction which had its inception in the Indian Insolvency Act, 11 and 12, Vict. Ch. 21, which was repealed by the Presidency Towns Insolvency Act of 1909 which transferred the jurisdiction to the High Court, that under the Indian Insolvency Act Advocates were only entitled to plead and Attorneys were only entitled to act in the insolvency jurisdiction, that Sect. 121 of the Presidency Towns Insolvency Act expressly reserves to Advocates and Attorneys the rights they had under the Indian Insolvency Act and that the Bar Councils Act which does not purport to deal with insolvency jurisdiction cannot be invoked to give Advocates a larger right of audience than that which existed at the date of the passing of the Act, and that the Indian Insolvency Act and the Presidency Towns Insolvency Act being special enactments dealing with special jurisdiction they cannot be controlled or affected by the Bar Councils Act which is a general enactment. It is also argued that even if the Bar Councils Act should apply, Sect. 19 (4) saves all rules in force which are not inconsistent with the Act and that the rules framed by the High Court under the Letters Patent which confine the Advocates to plead only in the Insolvency Court are not inconsistent with the Act and cannot therefore be said to be impliedly repealed.

Before dealing with these contentions it is necessary to refer to the rules and orders which were in force at the date when the Bar Councils Act came into force in so far as they relate to the insolvency jurisdiction of the High Court.

The history of the legislation as regards the rights of Advocates, Attorneys and vakils in so far as it relates to the Original Side of the High Court has been traced with great clearness in T. Namberumal Chetty…Plaintiff; v. M.P Narasimhachari…Defendant. where the question as to the rights of vakils and attorneys were raised. So far as Advocates and Attorneys are concerned the rules framed by the High Court as regards the Original Civil Jurisdiction are the same as those framed as regards the insolvency jurisdiction. The power of the High Court to frame rules in respect of the insolvency jurisdiction is derived from the Charter Act and the Letters Patent constituting the Madras High Court.

Sect. 17 of the Charter Act of 1800 empowered the Supreme Court,

“to approve, admit and enrol such and so many of the persons being bona fide practitioners of the Law in the said Court of Recorder of Madras or having been admitted Barristers in England or Ireland or having been admitted attorneys or solicitors in one of our Courts at Westminster or being otherwise capable according to such rules and qualifications as the said Court, shall, for that purpose, make and declare, to act as well in the character of advocates as of attorneys in the said Court, which persons so approved, admitted and enrolled as aforesaid, shall be and are hereby authorised to appear and plead and act for the suitors in the said Court.”

And it declares:

“that no other person whatsoever shall be allowed to appear and plead or act in the said Supreme Court of Jurisdiction at Madras for and on behalf of such suitors or any of them.”

Under the Charter Act it is, therefore, clear that the Supreme Court had power to enrol advocates who could be authorised by the rules both to act and plead in the Supreme Court, though as a matter of fact no such rules were made and so far as the Supreme Court was concerned the Advocates were only empowered to plead and not to act.

The Letters Patent constituting the High Court at Madras abolished the Supreme Court and transferred its jurisdiction to the High Court. The advocates and attorneys who were enrolled by the Supreme Court were enrolled as advocates of the High Court.

Cl. 9 of the Letters Patent gave the High Court power

“to approve, admit and enrol such and so many advocates, vakils and attorneys, as to the said High Court shall seem meet; and such advocates, vakils and attorneys, shall be and are hereby authorised to appear for the suitors of the said High Court, and to plead or to act or to plead and act, for the said suitors according as the said High Court may by its rules and directions determine and subject to such rules and directions.”

Cl. 10 gives the High Court power to frame rules for the qualification and admission of proper persons to be advocates, vakils and attorneys-at-law.

As regards insolvency jurisdiction Cl. 18 directs that the Court for the Relief of Insolvent Debtors shall be held before one of the Judges of the said High Court of Judicature at Madras, and the said High Court, and any such Judge thereof, shall have and exercise, within the Presidency of Madras such powers and authorities with respect to original and appellate jurisdiction and otherwise as are constituted by the laws relating to insolvent debtors in India:

So far as the power to make rules empowering vakils to appear, act and plead on the Original Side of the High Court it has been held that such power was within the comptence of the High Court by a Pull Bench as early as 1875 [In the Matter of the Petition of the Attorneys]. The question was again raised but the rules were held to have been validly framed [See T. Namberumal Chetty…Plaintiff; v. M.P Narasimhachari…Defendant.].

As regards the Insolvency Court however the rules framed by the Madras High Court did not authorise vakils to appear in the Insolvency Court or Advocates to act.

Rr. 128 and 129 of the Insolvency Rules run as follows:

“R. 328.—An advocate may appear and plead upon any hearing in Court or in Chambers; provided that the taxing officer shall not, as between party and party allow any fee in respect of his attendance at Chambers unless the Judge certifies that the case is a proper one for the attendance of an Advocate.”

“R. 129.—An attorney may appear, plead and act upon all proceedings, provided that he shall not be allowed to appear, or plead upon a hearing in Court.”

So far as the Bombay High Court is concerned R. 36 states that:

“advocates may appear and plead for suitors on any side of this Court and in the Insolvent Court but not (except for an insolvent in the Insolvent Court or for a prisoner in the Criminal Court) unless instructed by an attorney or in the appellate side of the Court by a pleader.”

In Calcutta only Barristers enrolled as advocates instructed by attorneys could appear in the Insolvency Jurisdiction. After the passing of the Presidency Towns Insolvency Act, the question as to the right of vakils to practise in the insolvency side was raised but a Full Bench of this Court negatived the right [See Krishnaswami Ayyar v. Swaminatha Ayyar].

Having regard to the provisions of the Charter Act and the Letters Patent which I have already referred to it seems to me that the High Court had power to frame rules allowing Advocates to act in the insolvency jurisdiction though it did not do so. The legislature has power to legislate on the matter without any necessity to repeal any enactment relating to insolvency.

I am unable to agree with the contention of Mr. Srinivasa Aiyangar that there is anything in the Indian Insolvency Act (11 and 12 Vict. Ch. 21) which curtails the power of the High Court conferred on it by the Charter Act and the Letters Patent to entitle advocates to act as well as to plead in the Insolvent Court.

The material portion of Sect. 3 of the Indian Insolvency Act is as follows:

“And every advocate and attorney of the said Supreme Courts at Calcutta, Madras and Bombay, respectively, shall be entitled to practise in the way of his profession in the Court for the Relief of Insolvent Debtors of that Presidency and no other persons shall practise as advocates or attorneys in the said Courts for the relief of Insolvent Debtors.”

It is no doubt true that when the Act was passed it was only the attorneys that were entitled to act in Court and advocates were only entitled to plead. It should be remembered that when this Act was passed the Supreme Court which was constituted under the Charter Act of 1800 had under Sect. 17 power to enrol Advocates with powers to appear, act and plead. The Supreme Court Charter was repealed by the Letters Patent which, as I pointed out before, empowers the High Court to frame rules and the High Court as the successor of the Supreme Court and the possessor of the powers conferred on it by the Letters Patent was in my opinion competent to enrol Advocates who could act as well as plead.

The power of the High Court as regards vakils was affirmed in the cases reported in In the Matter of the Petition of the Attorneys and T. Namberumal Chetty…Plaintiff; v. M.P Narasimhachari…Defendant. already referred to and unless it can be shown that there is anything in the Indian Insolvency Act (11 and 12 Vict. Ch. 21) which curtails the power to frame rules permitting Advocates to act and plead on the Insolvency Side the same reasoning would apply to the rules, framed under the Insolvency Act. The words “shall be entitled to practise in the way of his profession” in Sect. 3 of the Indian Insolvency Act, simply mean shall be entitled to practise as advocate or attorney as he was doing before and does not amount to a statutory bar to advocates acting in the Court constituted by the Act nor does it override the powers given to the High Court under the Charter Act and the Letters Patent.

Sect. 121 of the Presidency Towns Insolvency Act confers no fresh right. It runs as follows:—

“Nothing in this Act, or in any transfer of jurisdiction effected thereby, shall take away or affect any right of audience that any person may have had immediately before the commencement of this Act, or shall be deemed to confer such rights in insolvency matters on any person who had not a right of audience before the Courts for the relief of insolvent debtors.”

All that this section says is that no fresh rights are conferred on any person by reason of the transfer of jurisdiction and it cannot be said that this Act curtailed the powers of the High Court to frame rules defining the functions of advocates if it was authorised to do so under the Letters Patent.

In my view at the date of the passing of the Bar Councils Act, the High Court had power to frame rules enabling Advocates to act and plead in the insolvency jurisdiction though it did not exercise that power.

There being no statutory bar to Advocates acting and pleading in the insolvency jurisdiction, I think there is no necessity for the amendment or repeal of Sect. 3 of the Indian Insolvency Act or Sect. 121 of the Presidency Towns Insolvency Act before Advocates can be allowed to act. It was within the competence of the High Court to give the power by rules and it follows that the legislature can do so by an act without the necessity of repealing anything in any previous enactment or any special reference to the insolvency jurisdiction.

In the view I take it is unnecessary to consider the cases referred to by Mr. Srinivasa Aiyangar as regards general later acts not controlling or affecting earlier special enactments.

The next point for consideration is whether the Bar Councils Act confers the power to act and plead on Advocates in all the jurisdictions of the High Court so far as Madras is concerned and whether the Rules 128 and 129 of the insolvency rules referred to must be taken to be no longer in force as they have been superseded by the provisions of the Bar Councils Act.

Sect. 2 (a) of the Bar Councils Act defines an Advocate as meaning an advocate entered in the roll of advocates of a High Court under the provisions of the Act.

Sect. 8 runs as follows:

“(1) No person shall be entitled as of right to pratise in any High Court, unless his name is entered in the roll of the Advocates of the High Court maintained under this Act:

Provided that nothing in this sub-section shall apply to any attorney of the High Court.”

Then follow the provisions as to the persons who are to be enrolled.

Sect. 14 runs as follows:—

“An advocate shall be entitled as of right to practise (a) subject to the provisions of Sub-Sect. 4 of Sect. 9 in the High Court of which he is an advocate and

(b) save as otherwise provided by Sub-Sect. 2 or by or under any other law for the time being in force in any other Court in British India and before any other tribunal or person legally authorised to take evidence and

(c) before any other authority or person before whom such advocate is by or under the law for the time being in force entitied to practise.”

Sect. 14 (3) gives the High Courts of Bombay and Calcutta power to frame rules regulating the rights of advocates on the Original Side.

Sect. 9 (1) empowers the Bar Council with the previous sanction of the High Court to make rules to regulate the admissions of persons to be advocates of the High Court.

Sect. 9 (4) saves the rule-making powers of the High Courts of Bombay and Calcutta as regards the practitioners on the Original Side.

Sect. 19 (4) which is the saving clause as regards the rules in force runs as follows:

“When this Act has come into force in respect of any High Court, any provision of any other enactment or any order, scheme, rule, form or bye-law made thereunder, which was before that date applicable to advocates, vakils or pleaders entitled to practise in such High Court shall, unless such a construction is repugnant to the context or to any provision made by or under this Act, be construed as applying to advocates of the High Court enrolled under this Act.”

The Bar Councils Act by Sect. 19 (2) repeals the Letters Patent in so far as it refers to the powers of the High Court to enrol advocates and vakils. It seems to me to be clear from the provisions above referred to that the Bar Councils Act so far as Madras is concerned makes no distinction as regards the different jurisdictions of the High Court, gives the High Court no power to frame rules so far as the original and insolvency sides are concerned to limit the functions of advocates only to plead, and prevent them from acting and keeps alive only such rules as the Madras High Court has already framed if they are consistent with the provisions of the Act.

It is to be noted that while the rule-making powers of the Bombay and Calcutta High Courts, so far as the Original Side is concerned are saved no such saving clauses are enacted so far as the Madras High Court is concerned. It was evidently thought that as the Madras vakils were authorised to appear, act and plead on the Original Side the Madras High Court offered a fair field for trying the experiment of unifying the Bar, which was the policy underlying the Act.

The word ‘practise’ ordinarily means, appear, act and plead, unless there is anything in the subject or context to limit its meaning. The word ‘practise’ is used in Sect. 4 of the Legal Practitioners Act of 1879 and it was held by Jwala Prasad, J., in Laurentius Ekka v. Dhuki Koeri* that the word ‘practise’ includes the right to appear, plead and act. I may in this connection refer to Bakhtawar Singh v. Sant Lal where it was held that advocates can act and plead unless there is anything in the rules framed by the High Court restricting their power.

I think that Sects. 8 and 14 of the Bar Councils Act which entitle an advocate as of right to practise in the High Court entitle an advocate of the Madras High Court to appear, act and plead in all the jurisdictions of the Madras High Court. If this view is correct, it follows that any rules which cut down that right to plead alone would be repugnant to the provisions of Sects. 8 and 14.

I do not think it makes any difference whether the Court for the relief of insolvent debtors is a separate Court or is only a part of the High Court's Original Civil Jurisdiction. If the Court is a separate Court it will be a Court falling under Cl. (b) of Sect. 14. As appeals lie to the High Court, it will be a Court subordinate to the High Court and Sect. 4 of the Legal Practitioners Act will also apply. If insolvency jurisdiction is part of the High Court's Original Side jurisdiction Sect. 14, Cl. (a) will apply.

I am unable to agree with the contention of Mr. Srinivasa Aiyangar that as an advocate is allowed to practise in the High Court even if he is prevented from acting in the Insolvent Court there is no repugnancy. I am of opinion that where an Act confers rights to a party in general terms and entitles him to perform more than one function, the cutting down of those rights by a rule would make that rule repugnant to the provisions of the Act. The following observations of Wills, J., in Reg v. Bird, Ex parte Needes are in point:

“I desire in my judgment to adopt a broad principle which is too clear to need cases to be cited for its justification—the principle that where a power to make regulations is given to a public body by statute, no regulations made under it can abridge a right conferred by the statute itself.”

I may also refer to Toronto (City) Municipal Corporation v. Virgo.

I am of opinion that advocates enrolled in the Madras High Court under the provisions of the Bar Councils Act are entitled to act and plead in the insolvency jurisdiction of the High Court.

Pakenham Walsh, J.—I agree and have nothing to add.

N.R.R

Re v. Powers Of Newly Enrolled Statutory Advocates.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Advocates' Arguments

Attorneys' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Re v. Powers Of Newly Enrolled Statutory Advocates.

Comments