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Ummadi Bala Venkata Reddi and ors. Vs. Kanala Narayana Reddi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.O. No. 319 of 1946
Judge
Reported inAIR1950Mad630
ActsProvincial Insolvency Act, 1920 - Sections 75 and 75(3)
AppellantUmmadi Bala Venkata Reddi and ors.
RespondentKanala Narayana Reddi and ors.
Appellant AdvocateR. Raja Gopala Ayyar, Adv.
Respondent AdvocateKasturi Seshagiri Rao, ;Kasturi Sivaprasada Rao, ;S.V. Venugopalachari and ;P.S.S. Rama Rao, Advs.
DispositionAppeal dismissed
Cases ReferredBalli v. Nandlal
Excerpt:
- - the leave referred to in section 75(3), provincial insolvency act, is clearly leave granted by a judge of this court and not by any of its administrative officers. it may very well be that there were sufficient grounds for granting leave in those cases; ' in the present case, the order complained of was made as far back as 18th august 1945, and the appeal has been coming up in the hat for some considerable time. that clearly could not have been done in this case......those falling within schedule 1 of the act and those falling outside that schedule. in respect of orders falling under schedule i an appeal lies as a matter of right. in respect of other orders the party has not an unqualified right of appeal; he has to obtain the leave either of the district court or of this court. in the present case admittedly no such leave has been obtained. an attempt was made to argue that the appeal has been 'admitted' and that the 'admission' of the appeal is tantamount to the grant of leave. there is really no substance in that contention at all. the appeal was 'admitted' as a matter of routine in the office and there was no order of any judge of this court admitting the appeal. the leave referred to in section 75(3), provincial insolvency act, is clearly leave.....
Judgment:

Balakrishna Ayyar, J.

1. This is an appeal from an order of the District Judge of Cuddappah allowing an application by two creditors of an insolvent to set aside the sale held on 18th February 1944 by the Official Receiver of certain properties of the insolvent.

2. The appeal was filed without the leave either of the District Court, Cuddappah, or of this Court; and the preliminary objection has been taken that this appeal is not therefore competent. This objection is sound. Section 75(2) and (3), Provincial Insolvency Act, provide for appeals from two classes of orders, namely, those falling within Schedule 1 of the Act and those falling outside that schedule. In respect of orders falling under Schedule I an appeal lies as a matter of right. In respect of other orders the party has not an unqualified right of appeal; he has to obtain the leave either of the District Court or of this Court. In the present case admittedly no such leave has been obtained. An attempt was made to argue that the appeal has been 'admitted' and that the 'admission' of the appeal is tantamount to the grant of leave. There is really no substance in that contention at all. The appeal was 'admitted' as a matter of routine in the office and there was no order of any Judge of this Court admitting the appeal. The leave referred to in Section 75(3), Provincial Insolvency Act, is clearly leave granted by a Judge of this Court and not by any of its administrative officers.

3. It was next argued that in some cases Courts have granted leave to appeal even on an oral application made at the time of the hearing. It may very well be that there were sufficient grounds for granting leave in those cases; bat we do not think that in the circumstances of this case leave should be granted merely because it is now asked for.

4. There are some very helpful observations on this question in the decision in Balli v. Nandlal, : AIR1916All349 . Piggot J. said:

'Where an order is appealable only by leave of the District Court or of this Court, the memorandum of appeal should always be accompanied by a petition for leave to appeal, and it should be made clear to the Judge sitting to receive petitions that the appeal is not presented as one which lies as of right.' Walsh J. added:

'Speaking for myself if I ever find that an appeal has been admitted as a matter of course when it is an appeal which lies only by leave of the lower Court or of this Court, I shall consider it to be a sufficient ground for refusing leave.'

In the present case, the order complained of was made as far back as 18th August 1945, and the appeal has been coming up in the Hat for some considerable time. It was the duty of the counsel before he filed the appeal to investigate and make certain whether leave was or was not necessary. That clearly could not have been done in this case. If there had been any oversight at that stage the error could have been rectified when the case came on to the ready cause list. That too, not having been done we do not think we should allow an oral application made at this stage for grant of leave.

5. In the result the appeal is dismissed with costs of the fourth respondent.


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