Skip to content


Shri Jagat Dhis Bhargawa Vs. Bakshi Gurcharan Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal from Order No. 32 of 1950
Judge
Reported inAIR1952P& H49
ActsProvincial Insolvency Act, 1920 - Sections 4, 75 and 75(1)
AppellantShri Jagat Dhis Bhargawa
RespondentBakshi Gurcharan Singh
Appellant Advocate Bishan Narain, Adv.
Respondent Advocate Party in Person and; S. Gurdev Singh, Adv.
DispositionAppeal allowed
Cases ReferredWamanrao Deorao v. Shrikumar Jaikumar
Excerpt:
.....of the litigation between the 17th of october. clearly, s. 1 to 5. clearly 'air (29) 1942 mad 305' does not govern the case. clearly, if the order in question is an 'ordermade or decision given' in the exercise of insolvency jurisdiction the order comes within section 75(1) of the act. 9. in these proceedings it is unnecessary to express an opinion on the soundness of the opinion expressed in 'air (29) 1942 mad 305' for a perusal of the order passed by the insolvency judge on 23-2-1949, shows that the order passed by the insolvency judge does not come within the rule laid down in 'air (29) 1942 mad 305. clearly, the order passed by the insolvency judge on 23-2-1949, is not merely an order regulating, procedure but decides questions arising on the merits of the application, 10. finding,..........mal-nand kishore appealed under section 75(1) of the act in the court of the first additional district judge at delhi. in the court of the first additional district judge, delhi, 'bakshi' gurcharan singh, special receiver of the estate of 'rai sahib' rup narain, urged a preliminary objection that the order passed by the insolvency judge on 23-2-1949 was not an appealable order. in dismissing the appeal, leaving the parties to bear their own costs jn the appeal the first additional district judge has found that the appeal was not competent. from the order passed by the first additional district judge, delhi, on 20-7-1950 jn miscellaneous civil appeal no. 83 of 1949 the receiver of the estate of messrs. shibba mal-nand kishore of delhi has come up in further appeal to this court under.....
Judgment:

Harnam Singh, J.

1. In Civil Suit No. 3 of 1926 the Court of first instance decreed the plain-tiff's claim for Rs. 1,66,570/- with future interest at annas fourteen per cent per mensem with a lien for that amount on the properties of 'Rai Sahib' Rup Narain insolvent. The relevant portion of the decree passed in that suit on 5-8-1929 reads:

'It is hereby ordered that the defendants are directed to pay Rs. 1,66,570/- with future interest at -/14/- per cent. per mensem till payment with costs of the suit.

It is also ordered that in default of payment 3/4th share belonging to R. S. Mr. Rup Narain in Barh Shahbulla property would be sold and the sale proceeds after deducting thereout expenses of the sale would be paid to the plaintiff up to the amount due to him, the balance if any would be paid to the Official Receiver during the insolvency, of Mr. Rup Narain and otherwise to him; in case of deficiency the plaintiff would be entitled to get his 'pro rata' share from the Official Receiver during insolvency but after annulment of the insolvency of R. S. Mr. Rup Narain or discharge he would be at liberty to apply for a personal decree against him. It is further ordered that defendant do also pay Rs. 3,344/- the costs of this suit to the plaintiff.'

From the decree passed by the Senior Subordinate Judge, Delhi, in Civil Suit No. 3 of 1926 the Official Receiver of the estate of 'Rai Sahib' Rup Narain insolvent preferred Civil Appeal No. 2699 of 1929 in the High Court of Lahore. On 16-11-1933 the High Court while disallowing the claim of 'Lala' Shibba Mal for priority over other creditors maintained the decree for Rs. 1,66,570/- with interest thereon at annas fourteen per cent. per mensem from 5-8-1929 up to the date of the realization of the decretal amount. Parties were left to bear their own costs in both the Courts.

2. During the pendency of Civil Appeal No. 2699 of 1929 'Lala' Nand Kishore, legal representative of 'Lala' Shibba Mal, applied for execution and the executing Court gave permission to 'Lala' Nand Kishore to bid at the auction sale on his furnishing security for the restitution of the amounts realized by him in the execution of that decree. Pursuant to that order by a registered bond 'Lala' Nand Kishore charged annas fourteen pies six share in the Royal Hotel, Queens Road, Delhi, for the restitution of the money he might realize in execution. In the execution proceedings 'Lala' Nand Kishore realized Rs. 1,09,000/-.

3. From the decree passed by the High Court 'Lala' Nand Kishore applied for leave to appeal to the Privy Council. That leave was granted in Civil Miscellaneous No. 701 of 1933. In those proceedings 'Lala' Nand Kishore applied that the Official Receiver may be restrained from realizing from him Rs. 1,09,000/-pending the decision of the Privy Council appeal. The application was granted subject to the applicant furnishing security for the restitution of Rs. 1,09,000/- carrying interest at the rate of rupees six per cent. per annum. The security was furnished on 13-3-1934. The appeal in the Privy Council failed on 17-10-1938.

4. In these proceedings it is not necessary to trace the history of the litigation between the 17th of October. 1938 and the 26th of July 1948. On the last-mentioned date 'Bakshi' Gur-charan Singh, Special Receiver of the estate of 'Rai Sahib' Rup Narain, applied under Section 4, Provincial Insolvency Act, 1920, hereinafter referred to as the Act, for the refund of Rs. 1,09,000/- with interest. In the proceedings arising out of that application the Receiver of the estate of 'Lala' Shibba Mal in the administration suit raised objections giving rise to the issues specified hereunder :

'1. Has this Court no jurisdiction to try this case?

2. Is there any order of the High Court or of my predecessor that an application for restitution should be made and, therefore, the present application under Section 4, Provincial Insolvency Act does not lie?

3. Has any leave of the Court been obtained? If not, what is its effect?

4. Is the present application barred by Section 144,C. P. C.?

5. Whether or not the Court should allow the present petition to be proceeded with? In deciding insolvency case No. 7 of 1948 the Insolvency Judge found against the Receiver of the estate of Messrs. Shibba Mal-Nand Kishore on the points covered by issues Nos. 1 to 5. From the order passed by the Insolvency Judge on 23-2-1949, the Receiver of the estate of Messrs. Shibba Mal-Nand Kishore appealed under Section 75(1) of the Act in the Court of the First Additional District Judge at Delhi. In the Court of the First Additional District Judge, Delhi, 'Bakshi' Gurcharan Singh, Special Receiver of the estate of 'Rai Sahib' Rup Narain, urged a preliminary objection that the order passed by the Insolvency Judge on 23-2-1949 was not an appealable order. In dismissing the appeal, leaving the parties to bear their own costs jn the appeal the First Additional District Judge has found that the appeal was not competent. From the order passed by the First Additional District Judge, Delhi, on 20-7-1950 jn Miscellaneous Civil Appeal No. 83 of 1949 the Receiver of the estate of Messrs. Shibba Mal-Nand Kishore of Delhi has come up in further appeal to this Court under Section 75 of the Act. 'Bakshi' Gurcharan Singh urges a preliminary objection S. A. O. No. 32 of 1950 is not competent.

5. From what he stated above, it appears that the question that arises for decision is whether the order passed by the Insolvency Judge on 23-2-1949, was an appealable order. Clearly, S. A. O. No. 32 of 1950 is competent if the order passed by the Insolvency Judge on 23-2-1949, is 'a decision come to or an order made in the exercise of insolvency jurisdiction' within Section 75(1) of the Act. Section 75(1) of the Act reads:

'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;

Provided 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 thinks fit;

Provided, further, that any such person aggrieved by a decision of the District Court on appeal from a decision of a subordinate Court under Section 4 may appeal to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908.'

6. Basing itself on 'Lakshmappa v. Talasani Venkata Reddi', AIR (29) 1942 Mad 305, the District Court has found that the order passed by the Insolvency Judge on 23-2-1949, was not an appealable order. In deciding 'AIR (29) 1942 Mad 305, Patanjali Sastri, J., (Wards-worth, J.. concurring) said:

'While we are sensible of the difficulty of stating in sufficiently clear-cut and definite terms what is and what is not an order for the purposes of Section 75, Provincial Insolvency Act, we are convinced that the recording of a mere finding, albeit in a formal manner, that the Court has jurisdiction to entertain (sic) aplication cannot be deemed to be an order within the meaning of that section. A decision upon jurisdiction has only the effect of regulating procedure and, where it is not sufficient to dispose of the application, hardly stands on a different footing from a ruling as to the admissibility of a document tendered or the relevancy of a question put and objected to in the course of the trial. Such decisions as to details of procedure and admissibility of evidence may, no doubt, be regarded as orders in a sense but it could not, we apprehend, have been intended that such decisions should by themselves be open to appeal apart from the final decision disposing of the application or matter.'

In the present case the order passed by the Insolvency Judge on 23-2-1949, does not merely deal with the jurisdiction of the Insolvency Judge to entertain the application under Section 4 of the Act. In making that order the Insolvency Judge has found against the appellant in these proceedings on pleas covered by issues Nos. 1 to 5. Clearly 'AIR (29) 1942 Mad 305' does not govern the case.

7. In 'Wamanrao Deorao v. Shrikumar Jaikumar', AIR (33) 1946 Nag 42, it was said that in the case of a claim sought to be made under Section 4 of the Act, a finding which does not dispose of the claim amounts 'to a decision come to or an order made within the meaning of Section 75(1) of the Act'. In AIR (33) 1946 Nag 42 the questions that were referred to the Division Bench for decision were :

(1) In the case of a claim sought to be made under Section 4, Provincial Insolvency Act, does a finding, which does not dispose of the claim amount to a decision come to or an order made within the meaning of Section 75(1), Provincial Insolvency Act What limit is to be placed on the word 'order' in S, 75(1);

(2) Is a decision that the Court has jurisdiction to entertain an application under Section 4 of the Act or a decision that there is no legal obstacle to the application, a decision under Section 4 within the meaning of the second proviso to Section 75(1) of the Act ?

In deciding the case Niyogi and Bose, JJ.said :

'The first part of the first question is accordingly answered in the affirmative. We alsohold that the decision referred to was under Section 4 and accordingly is a 'decision' under Section 4 within the meaning of Proviso 2 to Section 75(1). Our answer to the second question is also in the affirmative.'

Indeed, there are no words of limitation in Section 75(1) of the Act. The order in question was passed by the Insolvency Judge in the courseof insolvency application. That order must,therefore, be deemed to have been passed inthe exercise of insolvency jurisdiction. Section 75 of the Act specifically provided for appeals and revision petitions against ordersmade in the exercise of insolvency jurisdiction.Clearly, if the order in question is an 'ordermade or decision given' in the exercise of insolvency Jurisdiction the order comes within Section 75(1) of the Act.

8. In the Act there is no definition of the word 'order' or 'decision'. In Rule 5 of Order 20, Civil P. C. it is said that in suits in which, issues have been framed, the Court shall state its finding or decision, with the reasons there for, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. In the second edition of Stroud's 'Judicial Dictionary', p.479, the expression 'decision' is defined as under :

' 'Decision' is a popular, and not a technical word, and means little more than a concluded opinion.'

In Section 109, Civil P. C., a clear distinction is made between 'orders' and 'final orders'. In Section 11 of that Code the words 'finally decided' as opposed to 'decided' are used. The Civil Procedure Code was before the Legislature when the Act was passed. That being so, the omission to place the word 'final' before the word 'decision' in Section 75(1) of the Act must have been deliberate. In any case since we have the Legislature drawing distinction between 'decision' and 'final decision' I am bound to interpret the expression 'decision' occurring in Section 75(1) of the Act to mean a decision whether it is final or otherwise.

9. In these proceedings it is unnecessary to express an opinion on the soundness of the opinion expressed in 'AIR (29) 1942 Mad 305' for a perusal of the order passed by the Insolvency Judge on 23-2-1949, shows that the order passed by the Insolvency Judge does not come within the rule laid down in 'AIR (29) 1942 Mad 305. Clearly, the order passed by the Insolvency Judge on 23-2-1949, is not merely an order regulating, procedure but decides questions arising on the merits of the application,

10. Finding, as I do, that the order passed by the Insolvency Judge on 23-2-1949, falls within Section 75(1) of the Act, I allow the appeal, set aside the order passed by the Insolvency Judge, Delhi, on 20-7-1950, and remand the case to the lower appellate Court for decision of the appeal on merits. No order as to costs in these proceedings. Parties are directed to appear in the Court of the First Additional District Judge, Delhi, on 6-9-1951.


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