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Chiranji Lal Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All276; 25Ind.Cas.986
AppellantChiranji Lal
RespondentEmperor
Cases ReferredNathumal v. District Judge of Benares
Excerpt:
provincial insolvency act (iii of 1907), sections 3, 43, 46(1)--court of additional judge, whether subordinate to district court--order under section 43--appeal, whether lies to high court--nature of appeal--jurisdiction. - - i am clearly of opinion that the court subordinate to the district court, referred to in section 46, sub-section (1), is the subordinate court mentioned in section 3 of the act, that is to say, a court subordinate to the district court which has been invested by the local government with the previous sanction of the governor-general in council by notification in the local official gazette with jurisdiction in insolvency matters. had it been intended that the court of an additional judge should be deemed to be a subordinate court within the meaning of the section,..........provides that the additional judges so appointed shall discharge any of the functions of the district judge which the district judge may assign to them, and in discharge of those functions shall exercise the same powers as a district judge. there is no doubt that the second additional judge was duly appointed under section 8 and there can be no doubt that the district judge assigned to the second additional judge the disposal of this particular insolvency application. it seems to me that there can be also no doubt that under clause (2) of section 8 the district judge had authority to assign the petition in question to the second additional judge, section 20 provides: 'save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a.....
Judgment:

Henry Richards, C.J.

1. Chiranji Lal applied to be declared an insolvent. The case came before the Second Additional Judge of Aligarh, and he, in exercise of the jurisdiction ' conferred upon the Court by Section 43 of the Provincial Insolvency Act of 1907, ordered the debtor to be imprisoned for a term of two months for having fraudulently or vexatiously concealed books of account. The debtor, Chiranji Lal, appealed to this Court against the order of the Second Additional Judge.

2. A preliminary objection was taken against the hearing of the appeal to the effect that an appeal did not lie to the High Court, but lay to the District Court. Section 8 of the Bengal, N.W.P. and Assam Civil Courts Act (XII of 1887) provides for the appointment by Government of Additional Judges. Clause (2) of the same section provides that the Additional Judges so appointed shall discharge any of the functions of the District Judge which the District Judge may assign to them, and in discharge of those functions shall exercise the same powers as a District Judge. There is no doubt that the Second Additional Judge was duly appointed under Section 8 and there can be no doubt that the District Judge assigned to the Second Additional Judge the disposal of this particular insolvency application. It seems to me that there can be also no doubt that under Clause (2) of Section 8 the District Judge had authority to assign the petition in question to the Second Additional Judge, Section 20 provides: 'Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional Judge shall lie to the High Court.' In my opinion these provisions make it quite clear that the appeal in the present case lay to the High Court.

3. The Additional Judge dealt with the matter as a District Judge. It was contended by the objector that under the provisions of Section 46 of the Provincial Insolvency Act of 1907 an appeal from; an order of a Court subordinate to the District Judge lies to the District Judge and it is argued that the Second Additional Judge was a Court subordinate to the District Court within the meaning of Section 46. Clause (1). In support of this contention Section 39 of the Bengal, N.W.P. and Assam Civil Courts' Act is cited. This section provides as-follows: 'For the purposes of the last-foregoing section the presiding officer of a Court subject to the administrative control of the District Judge shall be deemed to be immediately subordinate to the Court of the District Judge, and, for the purposes of the Code of Civil Procedure, the Court of such an officer shall be deemed to be of a grade inferior to that of the Court of the District Judge. It seems-to me that this is a clause providing that for the specified purposes mentioned in-section 39, and for this purpose only, a Court is to be deemed subordinate or of a lower grade to the Court of the District Judge. It cannot override the other clears provisions to which I have referred. A Bench of this Court has already considered this question in the case of Makhan Lal v. Sri Lal 14 Ind. Cas. 162 : 9 A.L.J. 371 : 34 A. 382. The view taken by the learned Judges in that case was that the appeal from an order of the Additional' Judge lay to the High Court and not to-the District Judge. I entirely agree with-the view taken by the learned Judges in that case and I would overrule the preliminary objection.

George Knox, J.

4. I regret finding myself unable to follow the view taken by my brother Judges in this matter. So far as I am aware when the Legislature intends that an appeal from an Additional Judge shall lie to the High Court, it makes special provision for the purpose; as for instance in Section 20 of Act XII of 1887. It seems to me that the Provincial Insolvency Act, III of 1907, intended that the Court having jurisdiction under the Act should be the District Court and Courts which were authorised by the Local Government with the previous sanction of the Governor-General in Council to exercise such jurisdiction. If it had; been intended that an appeal from an Additional Judge should lie direst to this Court, it would have been very simple for the Legislature to have said in Section 46 (2): 'Any person aggrieved by an order made by the District Court or the Additional Judge under section * * * * * 'In the absence of special words conferring a right of appeal from an Additional Judge to the High Court I am not prepared to hold that an appeal would so lie. I can quite understand that the Legislature may have intended that matters this kind, which called for speedy decision, should, if there was an Additional Judge in the first instance, be referred to and at once decided by the District Court on the spot.

P.C. Banerji, J.

5. The question to be determined in this case is whether an appeal from the order of the Second Additional Judge in this case lay to this, Court or to the Court of the District Judge. In support of the contention that the appeal lay to the District Judge reference is made to Section 46 of the * Provincial Insolvency Act, which is to the effect that a person aggrieved by an order made in the exercise of an insolvency jurisdiction by a Court subordinate to the District Court may appeal to the District Court. It is urged that the Court of the Additional Judge is subordinate to the District Court within the meaning of the section and that, therefore, no appeal lies to this Court. I am unable to agree with this contention. I am clearly of opinion that the Court subordinate to the District Court, referred to in Section 46, Sub-section (1), is the subordinate Court mentioned in Section 3 of the Act, that is to say, a Court subordinate to the District Court which has been invested by the Local Government with the previous sanction of the Governor-General in Council by notification in the Local Official Gazette with jurisdiction in insolvency matters. Had it been intended that the Court of an Additional Judge should be deemed to be a subordinate Court within the meaning of the section, it would have been distinctly provided in the section in the case of Additional Judges that they shall be deemed to be subordinate to the District Court in the same way as Courts of Small Causes have been declared to be subordinate to the District Court.

6. It is next urged that an Additional Judge is under the Civil Courts Act, XII of 1887, subordinate to the District Court, This contention also is, in my opinion, untenable.'' Section 3 of the Civil Courts Act defines the different classes of Civil Courts, but except for the purposes of administrative control and for the purposes mentioned in Section 39 of the Act, the Court of an Additional Judge is not declared in the Act to be subordinate' to the Court of the District Judge. Section 8 of the Act provides that an Additional Judge appointed by the Government is competent to discharge any of the functions of a District Judge which the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge. One of the functions of the District Judge is to try insolvency; matters, and under the provisions of this section the District Judge is competent to assign that function to the Additional Judge in any particular case or in any class of cases. In the discharge of those functions the Additional Judge exercises the powers of the District Judge as such, and it cannot be said that an appeal from an order made by him in the exercise of those functions lies to the District Judge, who himself can exercise no higher functions in regard to those matters. By Section 20 of the Civil Courts Act an appeal from an order of an Additional Judge lies to the High Court. Therefore in the present case the appeal, in my opinion, lay to this Court and the preliminary objection has no force. I may add that there can be no more inconvenience in allowing an appeal to this Court from the order of an Additional Judge than from the order of the District Judge.

7. By the Court.--We are all unanimously of opinion (assuming that an appeal did lie to this Court in the case) that it comes before this Court as a First Appeal from Order on the Civil Side. We, therefore, treat the case as such. Mr. Dillon has addressed: us on the merits of the case and has argued that there was no proper charge of having committed any offence under Section 43 of the Provincial Insolvency Act, and has called our attention to the case of Amiruddi Karikar v. Jadab Karikar 19 Ind. Cas. 920 : 19 C.L.J. 430 and also to the case of Nathumal v. District Judge of Benares 6 Ind. Cas. 870 : 32 A. 547 : 7 A.L.J. 602. In our opinion, having regard to the facts of the present case, the debtor had every, opportunity of knowing that an inquiry was being made as to whether he had not concealed and was not concealing his books of account. He got every opportunity of showing to the Court that he had not done this. Under these circumstances we see no reason to interfere with the order of the Court below and we accordingly dismiss the appeal. The appellant must now surrender to his bail and serve out the remainder of the sentence.


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