Madras High Court
Palaniappa Mudali And Anr. vs The Official Receiver Of Trichinopoly ... on 11 July, 1916
Equivalent citations: 35IND. CAS.610, (1917)32MLJ84, AIR 1917 MADRAS 414(1)
JUDGMENT
1. We think the learned Judge rightly construed the finding of the District Judge in saying that there was a finding that the appellants were not bona fide purchasers.
2. The cancellation of the sale deeds in so far as they conveyed the share of the Insolvent was therefore right, but the Order of the District judge as it stands may be construed as implying that the appellants acquired no interest at all in the properties comprised in the sale deeds. The shares of the grand-father and of the father of the Insolvent could not vest in the Official Receiver, as they never applied to be declared insolvents. Sections 16, 18 and 36 of the Provincial Insolvency Act are clear on the point. Moreover the application of the Official Receiver was to cancel the sales only so far as the share of the Insolvent was concerned and the District Judge had no jurisdiction under the sections referred to, to deal with the other shares. We must therefore modify the Order of the District Judge by declaring that the sale deeds are cancelled in respect of the share of the Insolvent only.
3. A preliminary objection was taken to the maintainability of the appeal on the ground that Section 46 of the act only gives the High Court a discretion to interfere and as against the exercise of such discretion by a Single Judge, there is no right of appeal.
4. The language of Section 46 of the Insolvency Act is practically the same as that used in Section 25 of the Provincial Small Cause Courts Act, and it is settled law now that as against the decision of a Single Judge exercising jurisdiction under that section, there is a right of appeal. The same principle must govern the decision under Section 46 of the Provincial Insolvency Act. We overrule the preliminary objection.
5. In the result, subject to the modification already indicated, the appeal is dismissed. We direct each party to bear their own costs throughout.