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Srikantiah and anr. Vs. Honne Gowda and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 320 of 1953
Judge
Reported inAIR1955Kant97; AIR1955Mys97; ILR1954KAR330; (1956)34MysLJ23
ActsMysore Provincial Insolvency Act, 1920 - Sections 5, 16, 17, 75 and 75(1); Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10 - Order 22, Rule 3
AppellantSrikantiah and anr.
RespondentHonne Gowda and ors.
Appellant AdvocateC.B. Nandeeswar, Adv.
Respondent AdvocateM.A. Gopalaswamy Iyengar and ;H. Venkateshamurthy, Advs.
Excerpt:
- karnataka state minorities commission act, 1994 sections 4(3), (4) & 18(2)(b) & karnataka state minorities commission rules, 2000, rule 4: [p.d. dinakaran, c.j. & v.g. sabhahit, j] member nominated to minorities commission omission to make provisions by framing rule, for payment of salary held, when the act provides for payment of salary to person nominated as member, he cannot be denied salary merely because there is no rule providing for it. state is under obligation to frame rules for payment of salary to member. - firm bishan lal suraj bhan',air 1937 lah 568 (e). in this case, of the two creditors who filed the petition, one is still alive and the legal representatives of the other petitioner can well proceed with the case along with him......the application for revision was dismissed on the view that the' parties aggrieved should have filed an appeal under section 75 before a district judge. in -- 'wamanrao v. shri kumar jaikumar', air 1946 nag 42 co, the question was whether the finding of the insolvency court about its jurisdiction to decide certain matters raised in a case was appealable. the contention that the finding being preliminary, was not appealable was overruled & it was held that in matters arising in the insolvency case the provisions of the civil procedure code are not to be looked into and though the finding did not dispose of the claim, it amounted to a 'decision' to be appealed from under section 75(1).'budhsen v. asharfi lal : air1938all28 cited for the petitioners does not state anything to the.....
Judgment:
ORDER

1. The question raised in this case is whether an order rejecting an application filed under Order 22, Rule 3, Civil P. C., for the respondents 1 and 2 being brought on record in place of a accessed petitioner, in an insolvency case is appealable.

2. Two persons Ningamma and Thimme Gowda (sic) ed an application on 16-5-1944 in the Court of the Subordinate Judge, Mysore, for one Boriah being adjudged Insolvent, The case was registered as (sic) C. No. 16 of 1943-44 are an order of adjudication was passed thereby on 8-1-1945. Without referring to what happened in the course of the subsequent proceedings it is sufficient for the purpose of this case to state that an application (sic)A. No. VI was filed on 24-5-51 by the respondents 1 and 2 alleging that Thimme Gowda 2nd petitioner in I. C. No. 16/43-44 died in February, 1951 and that they being his son and widow respectively may be impleaded as his legal representatives. The 3rd respondent in the original petition who is an alienee from the insolvent, objected to this on the ground that the application was filed beyond 90 days from the date of Thimme Gowda's death. The objection was upheld and I. A. VI was dismissed.

On appeal by the petitioners who had filed I. A. VI, the learned District Judge on a consideration of the evidence found that death of Thimme Gowda had occurred within 90 days prior to the petition and therefore allowed the application. The correctness of this order is impugned on the ground that no appeal by against the order of the learned Subordinate Judge on I. A. No. VI as it was filed under Order 22, Rule 3, C.P.C., and the order of the District Judge must be held to be without jurisdiction. There is no indication in the order of the learned District Judge of either a doubt or contention regarding maintainability of the appeal. Nevertheless it is urged that the order has no validity for want of jurisdiction and should not be allowed to stand. The appeal must be held to be not competent if it depends on the provisions of the Civil Procedure Code as the order on I. A. No. VI does not fall within the category of the orders stated in the Code to be appealable and the Pull Bench decision in -- 'Venkatakrishna Beddy v. Krishna Reddy'; AIR 1926 Mad 586 (A) makes this clear.

3. The rules in Order 22 relate to substitution of parties in suits and appeals or other proceedings arising from suits. The application now for consideration was filed in the course of insolvency proceedings governed by special provisions of the Mysore Insolvency Act and the Civil Procedure Code can apply only to the extent required or permitted by these. The argument on petitioners' behalf that Section 5 of the Act attracts all the provisions of the Civil Procedure cannot be accepted as it states:

'(1) Subject to the provisions of this Act, the Court, in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction.

(2) Subject as aforesaid, the High Court and District Courts, in regard to proceedings under this Act in Courts subordinate to them, shall have the same powers and shall follow the same procedure as they respectively have and follow in regard to civil suits.'

It is, therefore, necessary that other provisions of the Act are to be looked into for finding out if the Code may be resorted to. Sections 16 & 17 of the Act for example show that the proceedings may continue even if a debtor dies & the Court may substitute one creditor for another to conduct the proceedings. Besides these particular provisions, Section 75 of the Act enables 'Any person aggrieved by a decision come to or an order made in the exercise of the Insolvency jurisdiction' to prefer an appeal. The right of appeal is substantive and when by the Act it is allowed with respect to 'any' decision or order, the right cannot be taken away or curtailed by the restrictive provisions of the Code of Civil Procedure. The words in Section 75 are wide enough to make an appeal possible though the C.P.C. denies it in some cases.

In -- 'In re Pedda Iswara Reddy', AIR 1948 Mad 520 (B), an order passed on an application filed under Order 1, Rule 10, Civil P. C., for adding certain persons as parties was sought to be revised in the High Court as no appeal against such an order lies under the C.P.C. The application for revision was dismissed on the view that the' parties aggrieved should have filed an appeal under Section 75 before a District Judge. In -- 'Wamanrao v. Shri kumar Jaikumar', AIR 1946 Nag 42 CO, the question was whether the finding of the Insolvency Court about its jurisdiction to decide certain matters raised in a case was appealable. The contention that the finding being preliminary, was not appealable was overruled & it was held that in matters arising in the insolvency case the provisions of the Civil Procedure Code are not to be looked into and though the finding did not dispose of the claim, it amounted to a 'decision' to be appealed from under Section 75(1).

'Budhsen v. Asharfi lal : AIR1938All28 cited for the petitioners does not state anything to the contrary and it deals mainly with the question of a second appeal and not a first appeal. There is no doubt that appeals are more extensively allowed under the Insolvency Act and orders not appealable according to the provisions of the Code such as those passed on applications for review are subject to appeal under the Insolvency Act. See -- 'Bher Singh v. Firm Bishan Lal Suraj Bhan', AIR 1937 Lah 568 (E). In this case, of the two creditors who filed the petition, one is still alive and the legal representatives of the other petitioner can well proceed with the case along with him.

4. The order of the learned District Judge, in my opinion, is correct. There is no reason to Interfere with the same. The petition is dismissed tout without costs.

5. Petition dismissed.


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