Skip to content


Wali Mohammad and ors. Vs. Higan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All80
AppellantWali Mohammad and ors.
RespondentHigan Lal
Excerpt:
- - must be satisfied that the order complained of is an order made by the court below in any appeal decided by it. here again the objection of the respondent seems to be well-founded. (1), which would make the order complained of final because it is not an order passed upon an appeal, but at the same time we with respect differ from the view of the nagpur court that we could interfere with the present order under the code of civil procedure......the suspension of a sentence passed by the court below and it was held that the provisions of the civil procedure code might be invoked in order to afford protection. the case which is really in point is the case of gangadhar v. shridhar 1921 61 ic 589. the learned additional judicial commissioner of nagpur observed as follows:the provincial insolvency act, 5 of 1920, was in force when the present application was made and i must consider that the application was made under the first proviso to section 75(1) of the act. but the order of the district court does not dispose of the appeal and consequently that proviso to section 75(1) has no application. but as no order has been passed by the district court upon the appeal the provision in section 75(1) that such an order would be final has.....
Judgment:

Bajpai, J.

1. The facts of this case might be briefly stated. One Lala Higan Lal a creditor applied for the adjudication of Wazir Ali as an insolvent in the Court of the Subordinate Judge of Sahayanpur who had insolvency jurisdiction. The application of the creditor was dismissed. He filed an appeal in the Court of the District, Judge and during the pendency of the appeal Wazir Ali died. An application was made by the creditor for bringing the heirs of Wazir Ali on the record and the learned District Judge observed that Section 17, Provincial Insolvency Act, applied and that the appeal would not abate. He directed that the case would proceed against the legal representatives of the deceased respondent. A second appeal has been preferred against this order by the legal representatives of Wazir Ali. A preliminary objection has been taken on behalf of the respondent that no second appeal lies and when it was pointed out that the High Court has very extensive powers in revision it was submitted that a revision also did not lie. In order to consider the merits of the preliminary objection we have got to interpret Section 75, Provincial Insolvency Act. Clause 1 provides that the debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a district Court may appeal to the district Court, and the order of the District Court upon such appeal shall be final. It is said that the policy of the Legislature is that an order of the District Court upon, the appeal would be final, and under the second proviso an appeal can be preferred only against the decision of the District Court.

2. There is a clear distinction between a decision and an order as is apparent from a reading of Sub-clause (1). So far as the appeal is concerned, the contention is that the District Court in the present case has not arrived at any decision but has only passed an interlocutory order impleading the legal representatives of the deceased respondent and therefore no , second appeal lies. We are of the opinion that there is considerable force in this contention and it is not possible, for us to entertain the present proceedings as an appeal.

3. It was then submitted by learned Counsel for the appellants that We should interfere with the order of the Court below in our revisional jurisdiction. , The first proviso to Section 75, Cl (1), says that the High Court, for the purpose of satisfying itself that an order made in any. appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it think fit. Before we can call for the case and pass appropriate orders we. must be satisfied that the order complained of is an order made by the Court below in any appeal decided by it. The objection of counsel for the respondent is that the appeal has not so far been decided by the District Court and as such it is not possible for us to interfere with the order of the Court below. Here again the objection of the respondent seems to be well-founded. On behalf of the appellants reliance was placed on the case of Abdul Razah v. Basiruddin Ahmad (1910) 14 CWN 586. Their Lordships there observed that where an appeal has been preferred against an order refusing the appellant's application to be declared an insolvent, the High Court has power in the exercise of. its. inherent jurisdiction as a Court of appeal to make an ad interim order for the protection of the appellant and for the appointment of a receiver of his assets during , the pendency of the appeal. We think that this case has no application inasmuch as there is no question here of the inherent power of the High Court to pass suitable orders in any miscellaneous proceeding that might come before the High Court in connection with the appeal pending before it. The next case that was brought to our notice was the case of Nagindas Bhukhandas v. Ghelabhai Gulabdas 1920 56 IC 449. The learned Judges of the Bombay High Court held that on an appeal from a sentence of imprisonment under Section 43, Provincial Insolvency Act, the High Court has power under Order 41, Rule 5, Civil P.C., read with Clause (2), Section 47, Provincial Insolvency Act, to suspend the sentence until the appeal is disposed of. Here also there was an appeal pending in the High Court and an application was made for the suspension of a sentence passed by the Court below and it was held that the provisions of the Civil Procedure Code might be invoked in order to afford protection. The case which is really in point is the case of Gangadhar v. Shridhar 1921 61 IC 589. The learned Additional Judicial Commissioner of Nagpur observed as follows:

The Provincial Insolvency Act, 5 of 1920, was in force when the present application was made and I must consider that the application was made under the first proviso to Section 75(1) of the Act. But the order of the District Court does not dispose of the appeal and consequently that proviso to Section 75(1) has no application. But as no order has been passed by the District Court upon the appeal the provision in Section 75(1) that such an order would be final has likewise no application. The powers given to High Courts by Section 5(2) of Act 5 of 1920 are subject to the provisions of that Act, but there is no provision which states that an interlocutory order is final. The High Court has power to set aside an interlocutory order passed in a civil suit. It has therefore power to set aside the order which I am asked to revise.

4. We agree that in terms there is nothing in Section 75, Cl.(1), which would make the order complained of final because it is not an order passed upon an appeal, but at the same time we with respect differ from the view of the Nagpur Court that we could interfere with the present order under the Code of Civil Procedure. The provision on which reliance is placed is contained in Section 5, Provincial Insolvency Act. That section says that subject to the provisions of this Act High Courts 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 said that we could interfere with the order of the Court below under Section 115, Civil P.C. The answer to that is that the High Court has power to act under the Code of Civil Procedure only subject to the provisions of this Act. Where therefore the Insolvency Act specifically provides for appeals and revisions in a particular manner any action taken by us under the Code of Civil Procedure will not be subject to the provisions of the Insolvency Act but will be in contravention of those provisions. Reference was made by learned Counsel for the respondent to Section 4, Civil P.C., which says that in the absence of any specific provision to the contrary, nothing. in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction, or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. The Provincial Insolvency Act is a special law and in the absence of any specific provision to the contrary the Code of Civil Procedure cannot limit or otherwise affect the provisions of the Insolvency. Act. We are therefore of the opinion that it is not possible to interfere with the order of the Court below under any provision of the Code of Civil Procedure when a distinct procedure is prescribed in the Provincial Insolvency Act.

5. At one stage it was argued on behalf of: the appellant that the order of the Court, below could be interfered with in appeal inasmuch as the order is a decision of the district Court. We cannot agree with this contention because a distinction has been drawn by the Act between a decision and an order. The word 'decision' has an element of finality so far as a'; particular Court is concerned and an interlocutory order of a Court cannot be said to be a decision of that Court. For the reasons given above we sustain the' preliminary objection and dismiss this. appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //