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Manekshar Sorabji Gandhi Vs. Dadabhai Jamshetji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1904)ILR27Bom393
AppellantManekshar Sorabji Gandhi
RespondentDadabhai Jamshetji
Excerpt:
civil procedure code (act xiv of 1882) sections 844, 845, 588 (17) and 589 application to be declared an insolvent - subject-matter of the suit over rs. 6,000 in value--first class subordinate judge--rejection of the application--appeal--district court. - .....(hereinafter called a 'district court'), and includes the local limits of the ordinary original civil jurisdiction of a high court: every court of a grade inferior to that of a district court, and every court of small causes, shall, for the purposes of this code, be deemed to be subordinate to the high court and the district court.' so the question is, whether the court that passed the order of rejection is of a grade inferior to that of the district court? in my opinion it is, and i should have thought the point free from doubt but for the decision in venkatrayer v. jamboo ayyan (1892) 17 mad. 377, where a different view was taken. but, with all respect for that decision, we see no reason to read into the section words which have no place there. we feel the more justified in.....
Judgment:

L.H. Jenkins, K.C.I.E. C.J.

1. This is an appeal from an order rejecting with costs an application whereby the present appellant prays that he may be declared to be an insolvent under Sections 344 and 345 of the Code of Civil Procedure. Any appeal that may lie from such an order would be under Clause (17) of Section 588 of the Code of Civil Procedure. Now Section 589 of the Code provides that: 'When an appeal from any order is allowed by this Chapter, it shall lie to the Court to which an appeal would lie from the decree in the suit in relation to which such order was made, or, when such order is passed by a Court (not being the High Court) in the exercise of appellate jurisdiction, then to the High Court: provided that an appeal from an order specified in Section 588, Clause 17, shall lie-

(a) to the District Court where the order was passed by a Court subordinate to that Court, and

(b) to the High Court in any other case.

2. The suit in relation to which the order of rejection has been made is one in which the subject-matter is over Rs. 5,000 in value. Mr. Coyaji for the respondents has taken a preliminary objection to the hearing of this appeal in the High Court on the ground that it should have been to the District Court. For the purposes of his argument he has referred us to Section 2 of the Code which, among other things, provides that: ''District' means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter Called a 'District Court'), and includes the local limits of the ordinary original civil jurisdiction of a High Court: every Court of a grade inferior to that of a District Court, and every Court of Small Causes, shall, for the purposes of this Code, be deemed to be subordinate to the High Court and the District Court.' So the question is, whether the Court that passed the order of rejection is of a grade inferior to that of the District Court? In my opinion it is, and I should have thought the point free from doubt but for the decision in Venkatrayer v. Jamboo Ayyan (1892) 17 Mad. 377, where a different view was taken. But, with all respect for that decision, we see no reason to read into the section words which have no place there. We feel the more justified in declining to follow the decision in Venkatrayer's case inasmuch as the Allahabad High Court in Debi Prasad v. Jamna Das (1900) 23 All. 56 has questioned the propriety of the Madras decision. In our opinion, therefore, the preliminary objection is sound and we must accordingly dismiss this appeal. The memorandum of appeal will be returned for presentation to the proper Court. Costs to abide the event of the appeal, if there is an appeal. If there is no appeal, then the appellant to pay the costs of this appeal.


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