1. The question before us is whether the appeal lies to the District Court or to the High Court. The suit in which the order was passed was one in which the subject-matter was over Rs. 5,000 in value and the appeal in the suit therefore lay to the High Court.
2. As Section 589, Civil Procedure Code, was first enacted appeals from orders specified under Section 588, Clause 17, lay in all cases to the High Court. This was medified by Act VII of 1888 in which the court to hear the appeal in the suit was made to hear the appeal against the orders in insolvency matters. The section thus modified failed however to provide for cases in which orders in insolvency matters were passed by courts of small causes, and by Section 3, Act X of 1888, it was provided that an appeal from an order specified in Section 588, Clause 17, should lie (a) to the District Court when the order was passed by a court; subordinate to that court, and (b) to the High Court in any other case.
3. The question therefore is whether Clause (a) operates to transfer the jurisdiction from the High Court to the District Court in cases in which the subject-matter of the suit is over Rs. 5,000 in value.
4. Section 2 of the Code of Civil Procedure makes a Subordinate Court subordinate both to the High Court and the District Court, but the Civil Courts' Act gives the appellate jurisdiction exclusively to the High Court in suits in which the subject-matter is over Es. 5000 in value. Bearing in mind that Section 589, Civil Procedure Code, was passed to regulate the appellate jurisdiction in appeals from orders, we are of opinion that the words ' court subordinate to that court' must be construed with reference to its appellate jurisdiction, it would be anomalous that the District Court should have jurisdiction to hear appeals from such orders when it had no jurisdiction to hear an appeal in the suit itself, and the first clause in the section points to an intention to give jurisdiction in insolvency matters to the ordinary appellate forum.
5. We must set aside the order of the District Court and direct that the appeal be returned to the party for presentation in the High Court. Appellant is entitled to his costs in this appeal,--but we make no order as to costs in the court below since the point was not taken there.