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Panachand Narsey Vs. Stanley Dobson - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 65 of 1922 and Suit No. 676 of 1922
Judge
Reported inAIR1923Bom245; (1923)25BOMLR161
AppellantPanachand Narsey
RespondentStanley Dobson
DispositionAppeal dismissed
Excerpt:
.....106(a) - insolvency-summary administration-order by court-leave to appeal-refusal-special leave to appeal-leave can be granted by appeal court under inherent jurisdiction-civil procedure code (act v of 1908), section 151.;where leave to appeal, under section 106(a) of the presidency towns insolvency act 1909, is refused by the insolvency court, it is competent to the unsuccessful party to apply to the court of appeal for special leave to appeal. the appeal court can, if a question of principle is involved near the appeal under its inherent powers. - - 175 per month to the official assignee for the benefit of his creditor the insolvent filed an affidavit against the rule in which he stated that he, as well as all persons working on the rutlam section of the bombay baroda and central..........stanley dobson filed a petition on september 12, 1921, in this court praying that he might be adjudged insolvent. on that petition an order for adjudication was made on the same day. on september 19, 1921, the official assignee reported that the property of the insolvent was not likely to exceed in value rs. 3,000, and applied that the court might order the estate to be administered in a summary manner, pursuant to section 106 of the presidency towns insolvency act. the order which i presume was made on that application does not appear on the record. on april 4, 1922, a creditor of the insolvent obtained a rule calling upon the insolvent to show cause why the order of adjudication made on september 12, 1921, on his petition should not be annulled for want of jurisdiction, or in the.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is an appeal which is on the face of it not competent. The facts are that one Stanley Dobson filed a petition on September 12, 1921, in this Court praying that he might be adjudged insolvent. On that petition an order for adjudication was made on the same day. On September 19, 1921, the Official Assignee reported that the property of the insolvent was not likely to exceed in value Rs. 3,000, and applied that the Court might order the estate to be administered in a summary manner, pursuant to Section 106 of the Presidency Towns Insolvency Act. The order which I presume was made on that application does not appear on the record. On April 4, 1922, a creditor of the insolvent obtained a rule calling upon the insolvent to show cause why the order of adjudication made on September 12, 1921, on his petition should not be annulled for want of jurisdiction, or in the alternative, why he should not be ordered to pay Rs. 175 per month to the Official Assignee for the benefit of his creditor The insolvent filed an affidavit against the rule in which he stated that he, as well as all persons working on the Rutlam section of the Bombay Baroda and Central India Railway were engaged and dismissed from Bombay by that Railway which had its head-quarters at Bombay, their pay-sheets were submitted to and sanctioned in Bombay and they received orders from Bombay, He further stated that leave was sanctioned at Bombay and occasionally he was booked to run from Rutlam to Bombay and also from Bombay to Rutlam. The rule was discharged by the learned Judge. He was of opinion that, the work which the insolvents did came within Section 11(c) of the Act, that, in other words, they worked within the limits of the Ordinary Original Civil Jurisdiction of this Court, and that they did that work personally, and they did it for gain.

2. Now, under Section 106(a) of the Presidency Towns Insolvency Act (III of 1909) in a summary insolvency no appeal is allowed from any order of the Court except by leave of the Court. The creditor applied for leave and this was refused by the learned Judge, He said:

I confess that the question does not seem to me to be of that importance to the petitioning creditor or to anybody else which would justify me in prolonging this litigation. Mr. Davar says that somewhere about 1904, the position of Engine-drivers was considered with reference to this point and certain conclusions were arrived at; but these authorities, if any, are not produced before me, and although this is the third time this case has come before me, I am still without any definite authority in insolvency to support the petitioning creditor's application.

3. As leave to appeal was refused, no appeal to this Court was competent. The only course open to the creditor was to apply to this Court by petition for special leave to appeal. If this appeal were dismissed summarily on the ground that it was not competent, it might still be open to the creditor to file such a petition, and so we think it desirable to look upon this appeal as a petition praying for special leave. Then we can consider the question whether an appeal should be admitted from the original order of the lower Court. It might be said that at first sight the wording of the Section 106(a) excludes entirely the jurisdiction of this Court to question the decision of the lower Court. But I should not like to go so far as to hold that our inherent powers are altogether ousted and, if authority were necessary, a reference can be made to the decision in Ex parte Gilchrist: In re Armstrong (1886) 17 Q.B.D. 521. That was a case under the English Bankruptcy Act of 1882. An order had been made by the County Court Judge. It was reversed by the order of the Divisional Court. Under Section 104 of the Act of 1882 leave would have to be granted by the Divisional Court before an appeal could be filed to the Court of Appeal. Leave was refused and special leave was granted by the Court of Appeal. Lord Esher said at p. 527:

The Divisional Court refused an application for leave to appeal from their decision, but leave to appeal was given by this Court. The jurisdiction which the Judges of the Divisional Court have to give or to refuse leave to appeal from their own decisions is a very delicate one. Merely to say that they are satisfied their decision is right is not, I venture to suggest, a sufficient reason for refusing leave to appeal, when the question involved is one of principle and they have decided it for the first time. If that was carried to its legitimate conclusion, they ought to refuse leave to appeal in every case.

4. In most cases where an order has been made that the estate should be administered in a summary manner it would be unlikely that any important question of principle would arise in the course of the administration. But if such a question did arise the Judge in all probability would not refuse leave to appeal.

5. However, in this case the only question was whether the petitioner did work personally and did it for gain within the limits of the Ordinary Original Civil Jurisdiction of the Court a ad that was a question which was to be decided on the evidence before the Court. Though it might be a mixed question of law and fact, it was mainly a question of fact. Therefore, we see no reason why we should hold in this case that the Judge was wrong in refusing leave to appeal. The appeal is, therefore, dismissed with costs.


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