Kerala High Court
Anaparakkal.T.P.Abdul Majeed vs Balussery Branch Manager on 31 March, 2011
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1241 of 2011(O)
1. ANAPARAKKAL.T.P.ABDUL MAJEED,
... Petitioner
Vs
1. BALUSSERY BRANCH MANAGER,STATE BANK OF
... Respondent
2. SPECIAL TAHSILDAR,REVENUE RECOVERY,
3. MALABAR CHIT FUNDS PVT.LTD,3RD FLOOR,
4. M/S M.V.TRADERS,RAMANATTUKARA,KOZHIKODE,
5. KALCHILAKALAYIL ABDUL MAJEED,
6. P.P.IBRAHIMKUTTY,S/O.THARUVAYIKUTTY,
7. ANAPARA HUSSAIN MASTER,
8. DISTRICT COLLECTOR,CIVIL STATION,
9. MANAGER,SOUTH MALABAR GRAMIN BANK,
10. MANAGER,SOUTH MALABAR GRAMIN BANK,
For Petitioner :SRI.V.V.ASOKAN
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated :31/03/2011
O R D E R
K.T.SANKARAN, J.
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O.P.(C).No.1241 of 2011
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Dated this the 31st day of March, 2011
JUDGMENT
Aggrieved by the order in I.P.No.1 of 2007, on the file of the court of the Subordinate Judge of Koyilandy, the petitioner herein filed an appeal before the District Court, Kozhikode. The appeal was filed as C.M.A., i.e., Civil Miscellaneous Appeal. The District Court passed an order dated 10.3.2011 which reads as follows :
"Heard the appellant. This is an appeal filed under Section 79 of the Insolvency Act. But it is filed as a Civil Miscellaneous Appeal. Section 75 of the Insolvency Act deals with the filing of appeal. Since the order appealed against is being a final order the appellant ought to have filed an appeal as provided under Order 41 Rule 1 CPC or O.P.(C)No.1241/2011 2 under Order XLIV Rule 1 CPC. But instead of filing a regular appeal, the appellant has filed this appeal under Order XLIII Rule 1 CPC. As the order appealed against is not an interlocutory order or an order specified in Order XLIII Rule 1, I am of the view that the Civil Miscellaneous Appeal filed by the appellant is not maintainable. So return the appeal memorandum to the appellant for preferring a regular appeal instead of Civil Miscellaneous Appeal."
2. The petitioner is aggrieved by the order passed by the District Court. The prayer in this Original Petition is to set aside the order dated 10.3.2011 and to direct the District Court to accept the appeal as C.M.A.
3. Section 79 of the Insolvency Act, 1955 (Act 2 of 1956) provides for appeals. Section 79(1), which is relevant for O.P.(C)No.1241/2011 3 the purpose, reads as follows :
"79. Appeals :
(1) The debtor, any creditor, the receiver of any other person aggrieved by a decision come into 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 :
Provided that the High Court, for the purposes 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 there to as it thinks fit :
Provided further that any such person aggrieved by a decision of the District Court on appeal from a decision of a subordinate 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."
O.P.(C)No.1241/2011 4
Sub Section (1) only says that an appeal lies to the District Court. The second proviso to Sub Section (1) of Section 79 provides for a Second Appeal to the High Court against the decision of the appellate court on any of the grounds mentioned in Sub Section (1) of Section 100 of CPC. The question to be considered is whether the appeal before the District Court is to be numbered as C.M.A. or whether it should be numbered as A.S.
4. As a Second Appeal is provided to the High Court from the decision of the District Court, necessarily it should be in accordance with the nomenclature prescribed for filing a Second Appeal. With effect from 21.5.2003, the new categorisation and nomenclature of cases was accepted in the High Court of Kerala, based on the resolution of the Chief Justice's Conference 1997. As per the new categorisation and nomenclature of cases, the Second Appeals from judgments in Miscellaneous Cases will be numbered as M.S.A. i.e., O.P.(C)No.1241/2011 5 Miscellaneous Second Appeal. It is pointed out that appeals under special statutes are being numbered as C.M.A.s in the subordinate courts and when Second Appeals are filed, they are being filed as Miscellaneous Second Appeals. A Second Appeal under Section 79 of the Insolvency Act filed in the High Court is being numbered as M.S.A.
5. Appeals filed against orders are being numbered as Civil Miscellaneous Appeals in the subordinate courts. In the High Court, after the new categorisation and nomenclature, appeals against orders are being numbered as F.A.O.s. (First Appeal from Order).
6. Appeals to the District Court under Section 79 of the Insolvency Act cannot be numbered as A.S. since it is not against a decree passed by the civil court. Such appeals should be numbered as Civil Miscellaneous Appeals. The view taken by the court below is that since the order appealed O.P.(C)No.1241/2011 6 against is a final order, the petitioner should have filed an appeal as provided under Order 41 Rule 1 C.P.C. or under Order 44 Rule 1 C.P.C. The appeal which is provided under Rule 1 of Order 41 is an appeal under Section 96 of the Code of Civil Procedure. An appeal shall lie from every decree passed by any court exercising original jurisdiction. Order 43 of Rule 1 of the Code of Civil Procedure provides that an appeal shall lie from the orders mentioned in Rule 1 under the provisions of Section 104 C.P.C. Such appeals under Section 104 and Order 43 C.P.C. would not be numbered as A.S. or R.F.A. since the orders impugned in appeals though final in nature, are not decrees in suits. Even in cases where orders are treated as decree, for example an order under Rule 58 of Order 21 or an order under Rule 104 and 103 of Order 21, the appeals therefrom are not being numbered as A.S. or R.F.A. They are being numbered as Execution First Appeal and Execution Second Appeal, as the case may be. O.P.(C)No.1241/2011 7
7. For the aforesaid reasons, I am of the view that the nomenclature for the appeal filed by the petitioner was correctly shown as C.M.A. The order dated 10.3.2011 is set aside. The District Court shall take the appeal on file with nomenclature as C.M.A. The Original Petition is disposed of as above.
K.T.SANKARAN JUDGE csl