Bombay High Court
Bhagwanji Haridas vs Premji Parashotam And Anr. on 13 December, 1957
Equivalent citations: AIR1959BOM47, (1958)60BOMLR1197, ILR1958BOM1115, AIR 1959 BOMBAY 47, ILR (1958) BOM 1115 60 BOM LR 1197, 60 BOM LR 1197
JUDGMENT D.V. Vyas, J.
1. This first appeal, which raises a short but important point of law under the Provincial Insolvency Act, is filed by the original applicant who filed Insolvency Petition No. 3 of 1955. The appeal is from an order made by the learned Assistant Judge at Porbandar on 24-9-1956 in the said petition. By the said order, the learned Assistant Judge directed that Shri Erda, a clerk of his Court, be appointed as a receiver to take over possession of the account books and the properties which may be in the possession of the applicant. As to the properties, which may not be in the actual possession of the applicant, but which may be in the possession either of the opponent No. 1 or of any other relations of the applicant, those properties were not to be taken by the receiver from the possession of those persons.
2. It is not necessary for us to go into the merits of this appeal, because, upon the point of law we take the view that the appellant ought to have filed this appeal, not before the High Court, but before the District Court, Sorath, at Junagadh. The provisions of Section 75 of the Provincial Insolvency Act are perfectly clear on this point. Section 75 occurs in Part VI of the Act. Part VI of the Act deals with appeals. Section 75, Sub-section (1) provides:
"The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court may appeal to the District Court, and the order of the District Court upon such appeal shall be final.' It is therefore clear that, if any order is passed by a Court subordinate to a District Court, in the exercise of its insolvency jurisdiction, then an appeal does not lie to the High Court, but it lies to the District Court. From Sub-section (1) of Section 75 of the Act, we must turn to Section 3 of the Act. Section 3 provides that the District courts shall be the Courts having jurisdiction under the Provincial Insolvency Act. This provision is subject to a proviso, that the State Government may, by notification in the Official Gazette invest any Court subordinate to a District Court with jurisdiction in any class of cases, and any court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Court under this Act. We do not know whether in this particular case, a notification under Sub-section (1) of the Act, investing the Assistant Judge with jurisdiction under the Act, was issued by the State of Saurashtra. If no such notification had been issued, then it is clear that the learned Assistant Judge, who dealt wit this matter and decided it, had no jurisdiction to do so. Nut, even upon the assumption that a requisite notification was issued by the State of Saurashtra, investing the Assistant Judge with jurisdiction under the Provincial Insolvency Act, even so, there is no doubt that an Assistant Judge's Court is a Court subordinate to a District Court. Indeed, the provisions of Sub-section (1) of Section 3 would themselves make this position clear. The proviso to this sub-section says that a notification may be issued by the State Government investing any Court subordinate to a District Court, with jurisdiction under the Insolvency Act. Therefore, upon the plain language of the proviso to Sub-section (1) of Section 3, it must be clear that the Assistant Judge, though invested with jurisdiction under the Act, by a notification issued by the state Government, would still be a Court subordinate to a District Court. He would undoubtedly have jurisdiction concurrent with the jurisdiction of the District Court, but that would not make the Assistant Judge's Court a Court not subordinate to the District Court. The expression "any court so invested shall..... have concurrent jurisdiction with the District Court" only means that even though a Court subordinate to a District Court may be invested with jurisdiction under the Act, the District Court would still continue to possess jurisdiction under the Act. In that case there would be two Courts in a district having jurisdiction under the Provincial Insolvency Act viz., the District Court itself and the court invested by a notification issued in the State Gazette with jurisdiction under the Act. That is the only meaning we could attach to the expression "concurrent jurisdiction" which occurs in the provisions of Sub-section (1) of Section 3. The point, therefore, is that not with standing the fact that the Assistant Judge may have been invested with jurisdiction under the Act by a notification issued under Section 3, Sub-section (1) of the Act, he would still be a Court subordinate to the District Court. Because he is a Court subordinate to the District Court, there would arise a necessity to issue a notification under the proviso to Sub-section (1) of Section 3 of the Act. Had he not been a Court subordinate to the District Court, there would be no necessity to issue a notification under Sub-section (1) of Section 3. Therefore, once we come to the conclusion that the Assistant Judge, though invested with jurisdiction under Sub-section (1) of Section 3, is a Court subordinate to the District court, then, under Sub-section (1) of Section 75 of the Act, an appeal from a decision of the subordinate Judge must lie, in the first instance, to the District Court, and not to the High Court. In this connection, a reference to Section 5 of the Saurashtra Ordinance No. XI of 1948 would not be out of place. Section 5 of the Ordinance occurs under Part III and Part III relates to District Courts. Section 5 provides that there shall be in each district a District Court presided over by a Judge. This would clearly show that an Assistant Judge would not be a District Court within the meaning of Section 5 of Saurashtra Ordinance No. XI of 1948. Section 5 lays down that there can be only one Court which can be said to be a District Court in a district, and that would be a Court presided over by a District Judge. There might be other Courts in a district. There might be several Courts of Assistant Judges. There might be a Court of an Additional District Judge, but those Courts would not be District Courts within the meaning of Section 5 of the Ordinance. As I have just said, there can be only one District Court in a District, and that is the Court presided over by the District Judge himself. Therefore, it is clear that even though an Assistant Judge may have been invested with jurisdiction under the Provincial Insolvency Act by a notification issued under Section 3, Sub-section (1) of the Act, he could bot be a District Court, in the sense in which the expression "District Court" is used in Sub-section (1) of Section 75 of the Provincial Insolvency Act. In these circumstances, we are of the view that the appeal which is filed from a decision of the Assistant Judge must lie not to the High Court, but to the district Court.
3. There is a proviso to Sub-section (1) of Section 75 and the proviso says that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law may call for the case and pass such order with respect thereto as it thinks fit. The intention of the legislature, when it enacted Part VI of the Act, would be clear from the proviso to Sub-section (1) of Section 75. The legislature intended that from a decision of a Court subordinate to the District Court, an appeal must lie, in the first instance, to the District Court itself, but the High Court in order to satisfy itself that an order made by the District Court in appeal was an order according to law, may call for the case and pass such orders as the High Court thinks fit. This would be a revisional jurisdiction of the High Court, which is quite distinct from an appellate jurisdiction. Section 75, Sub-section (1) does not contemplate of any appellate jurisdiction of the High Court from the orders passed in insolvency proceedings by a Court subordinate to the District Court.
4. There is of course a further proviso to Sub-section (1) of Section 75 and the further proviso says that any person aggrieved by a decision of the District Court on appeal from a decision of a sub-ordinate Court under Section 4 may appeal to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure 1908. It would therefore be clear that an appeal, which is contemplated by this further proviso to Sub-section(1) of Section 75, is an appeal from a decision of a District Court which decision itself must have been arrived at from a decision of a subordinate Court, and it must be a decision under Section 4 of the Act. In this particular case, we are not dealing with a case of a decision under Section 4 of the Act. We are not dealing with a decision of a District Court. We are dealing with a decision of a Court subordinate to the District Court and that too, a decision not under Section 4 of the Act. That being so, the provisions of the further proviso the Sub-section (1) of Section 75 cannot be invoked by the appellant's learned advocate to assist his client.
5. For the reasons stated above, we are of the view that the present appeal should have been filed before this Court at all. Accordingly, without going into the merits of the matter, and without examining the validity or otherwise of the order passed by the learned Assistant judge on merits, we order that the appeal memo be returned to the appellant's learned advocate for presenting the same before the proper Court. As to costs, we shall make no order.
6. Before parting with this judgment, we would point out that the leave that was granted by the Assistant Judge to the appellant for filing an appeal before the High Court was granted under a misapprehension. The learned Judge did not realise that an appeal from an order passed by him would not lie to this Court but to the District Court. That being so, the leave granted by the learned Assistant judge would be infructuous.
7. Order accordingly.