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Bhagwanji Haridas Vs. Premji Parashotam and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 148 of 1956
Judge
Reported inAIR1959Bom47; (1958)60BOMLR1197; ILR1958Bom1115
ActsProvincial Insolvency Act, 1920 - Sections 3, 3(1), 3(4), 4, 75 and 75(1); Subordinate Civil Court Ordinance, 1948 - Sections 5; Code of Civil Procedure (CPC), 1908 - Sections 100(1)
AppellantBhagwanji Haridas
RespondentPremji Parashotam and anr.
Appellant AdvocateK.M. Chhaya, Adv.
Respondent AdvocateM.M. Shah, Adv.
Excerpt:
.....act (v of 1920), sections 75(1), 3(1), 4 - saurashtra ordinance (no. xi of 1948), section 5--assistant judge invested with jurisdiction under notification issued under section 3(1)--order passed by assistant judge in exercise of his insolvency jurisdiction--whether appeal from such order lies to high court or district court.;an assistant judge who is invested with jurisdiction under a notification issued under section 3(1) of the provincial insolvency act, 1920, would be a court subordinate to the district court and, therefore, an appeal against any decision or order passed by the assistant judge in the exercise of his insolvency jurisdiction will lie to the district court under section 75(1) of the act, and not to the high court. - maharashtra scheduled castes, scheduled tribes,..........can be said to be a district court in adistrict, and that would be a court presided over by a districtjudge. there might be other courts in a district. there might beseveral courts of assistant judges. there might be a court of anadditional district judge, but those courts would not be districtcourts within the meaning of section 5 of the ordinance. as ihave just said, there can be only one district court in adistrict, and that is the court presided over by the districtjudge himself. therefore, it is clear that even though an assistant judge may have been invested with jurisdiction underthe provincial insolvency act by a notification issued undersection 3, sub-section (1) of the act, he could bot be a districtcourt, in the sense in which the expression 'district court' isused in.....
Judgment:

D.V. Vyas, J.

1. This first appeal, which raises a short but important point oflaw under the Provincial Insolvency Act, is filed by the originalapplicant who filed Insolvency Petition No. 3 of 1955. The appealis from an order made by the learned Assistant Judge at Porbandaron 24-9-1956 in the said petition. By the said order, the learnedAssistant Judge directed that Shri Erda, a clerk of his Court,be appointed as a receiver to take over possession of the accountbooks and the properties which may be in the possession of theapplicant. As to the properties, which may not be in the actualpossession of the applicant, but which may be in the possessioneither of the opponent No. 1 or of any other relations of theapplicant, those properties were not to be taken by the receiverfrom the possession of those persons.

2. It is not necessary for us to go into the merits of thisappeal, because, upon the point of law we take the view that theappellant ought to have filed this appeal, not before the HighCourt, but before the District Court, Sorath, at Junagadh. Theprovisions of Section 75 of the Provincial Insolvency Act areperfectly clear on this point. Section 75 occurs in Part VI ofthe Act. Part VI of the Act deals with appeals. Section 75,Sub-section (1) provides:

'The debtor, any creditor, the receiver or any other personaggrieved by a decision come to or an order made in the exerciseof insolvency jurisdiction by a Court subordinate to a DistrictCourt may appeal to the District Court, and the order of theDistrict Court upon such appeal shall be final.'

It is thereforeclear that, if any order is passed by a Court subordinate to aDistrict Court, in the exercise of its insolvency jurisdiction,then an appeal does not lie to the High Court, but it lies to theDistrict Court. From Sub-section (1) of Section 75 of the Act,we must turn to Section 3 of the Act. Section 3 provides that theDistrict courts shall be the Courts having jurisdiction under theProvincial Insolvency Act. This provision is subject to aproviso, that the State Government may, by notification in theOfficial Gazette invest any Court subordinate to a District Courtwith jurisdiction in any class of cases, and any court soinvested shall, within the local limits of its jurisdiction, haveconcurrent jurisdiction with the District Court under this Act.We do not know whether in this particular case, a notificationunder Sub-section (1) of the Act, investing the Assistant Judgewith jurisdiction under the Act, was issued by the State ofSaurashtra. If no such notification had been issued, then it isclear that the learned Assistant Judge, who dealt wit this matterand decided it, had no jurisdiction to do so. Nut, even upon theassumption that a requisite notification was issued by the Stateof Saurashtra, investing the Assistant Judge with jurisdictionunder the Provincial Insolvency Act, even so, there is no doubtthat an Assistant Judge's Court is a Court subordinate to aDistrict Court. Indeed, the provisions of Sub-section (1) ofSection 3 would themselves make this position clear. The proviso to this sub-section says that a notification may be issued by theState Government investing any Court subordinate to a DistrictCourt, with jurisdiction under the Insolvency Act. Therefore,upon the plain language of the proviso to Sub-section (1) ofSection 3, it must be clear that the Assistant Judge, thoughinvested with jurisdiction under the Act, by a notificationissued by the state Government, would still be a Courtsubordinate to a District Court. He would undoubtedly havejurisdiction concurrent with the jurisdiction of the DistrictCourt, but that would not make the Assistant Judge's Court aCourt not subordinate to the District Court. The expression 'anycourt so invested shall..... have concurrent jurisdiction withthe District Court' only means that even though a Courtsubordinate to a District Court may be invested with jurisdictionunder the Act, the District Court would still continue to possessjurisdiction under the Act. In that case there would be twoCourts in a district having jurisdiction under the ProvincialInsolvency Act viz., the District Court itself and the courtinvested by a notification issued in the State Gazette withjurisdiction under the Act. That is the only meaning we couldattach to the expression 'concurrent jurisdiction' which occursin the provisions of Sub-section (1) of Section 3. The point,therefore, is that not with standing the fact that the AssistantJudge may have been invested with jurisdiction under the Act bya notification issued under Section 3, Sub-section (1) of theAct, he would still be a Court subordinate to the District Court.Because he is a Court subordinate to the District Court, therewould arise a necessity to issue a notification under the provisoto Sub-section (1) of Section 3 of the Act. Had he not been aCourt subordinate to the District Court, there would be nonecessity to issue a notification under Sub-section (1) ofSection 3. Therefore, once we come to the conclusion that theAssistant Judge, though invested with jurisdiction underSub-section (1) of Section 3, is a Court subordinate to theDistrict court, then, under Sub-section (1) of Section 75 of theAct, an appeal from a decision of the subordinate Judge must lie,in the first instance, to the District Court, and not to the HighCourt. In this connection, a reference to Section 5 of theSaurashtra Ordinance No. XI of 1948 would not be out of place.Section 5 of the Ordinance occurs under Part III and Part IIIrelates to District Courts. Section 5 provides that there shallbe in each district a District Court presided over by a Judge.This would clearly show that an Assistant Judge would not be aDistrict Court within the meaning of Section 5 of SaurashtraOrdinance No. XI of 1948. Section 5 lays down that there can beonly one Court which can be said to be a District Court in adistrict, and that would be a Court presided over by a DistrictJudge. There might be other Courts in a district. There might beseveral Courts of Assistant Judges. There might be a Court of anAdditional District Judge, but those Courts would not be DistrictCourts within the meaning of Section 5 of the Ordinance. As Ihave just said, there can be only one District Court in aDistrict, and that is the Court presided over by the DistrictJudge himself. Therefore, it is clear that even though an Assistant Judge may have been invested with jurisdiction underthe Provincial Insolvency Act by a notification issued underSection 3, Sub-section (1) of the Act, he could bot be a DistrictCourt, in the sense in which the expression 'District Court' isused in Sub-section (1) of Section 75 of the Provincial InsolvencyAct. In these circumstances, we are of the view that the appealwhich is filed from a decision of the Assistant Judge must lienot to the High Court, but to the district Court.

3. There is a proviso to Sub-section (1) of Section 75 and theproviso says that the High Court, for the purpose of satisfyingitself that an order made in any appeal decided by the DistrictCourt was according to law may call for the case and pass suchorder with respect thereto as it thinks fit. The intention of thelegislature, when it enacted Part VI of the Act, would be clearfrom the proviso to Sub-section (1) of Section 75. The legislatureintended that from a decision of a Court subordinate to theDistrict Court, an appeal must lie, in the first instance, to theDistrict Court itself, but the High Court in order to satisfyitself that an order made by the District Court in appeal was anorder according to law, may call for the case and pass suchorders as the High Court thinks fit. This would be a revisionaljurisdiction of the High Court, which is quite distinct from anappellate jurisdiction. Section 75, Sub-section (1) does notcontemplate of any appellate jurisdiction of the High Court fromthe orders passed in insolvency proceedings by a Courtsubordinate to the District Court.

4. There is of course a further proviso to Sub-section (1) ofSection 75 and the further proviso says that any person aggrievedby a decision of the District Court on appeal from a decision ofa sub-ordinate Court under Section 4 may appeal to the High Courton any of the grounds mentioned in Sub-section (1) of Section 100of the Code of Civil Procedure 1908. It would therefore be clearthat an appeal, which is contemplated by this further proviso toSub-section(1) of Section 75, is an appeal from a decision of aDistrict Court which decision itself must have been arrived atfrom a decision of a subordinate Court, and it must be a decisionunder Section 4 of the Act. In this particular case, we are notdealing with a case of a decision under Section 4 of the Act. Weare not dealing with a decision of a District Court. We aredealing with a decision of a Court subordinate to the DistrictCourt and that too, a decision not under Section 4 of the Act.That being so, the provisions of the further proviso theSub-section (1) of Section 75 cannot be invoked by theappellant's learned advocate to assist his client.

5. For the reasons stated above, we are of the view that thepresent appeal should have been filed before this Court at all.Accordingly, without going into the merits of the matter, andwithout examining the validity or otherwise of the order passedby the learned Assistant judge on merits, we order that theappeal memo be returned to the appellant's learned advocate forpresenting the same before the proper Court. As to costs, we shall make no order.

6. Before parting with this judgment, we would point out thatthe leave that was granted by the Assistant Judge to theappellant for filing an appeal before the High Court was grantedunder a misapprehension. The learned Judge did not realise thatan appeal from an order passed by him would not lie to this Courtbut to the District Court. That being so, the leave granted bythe learned Assistant judge would be infructuous.

7. Order accordingly.


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