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V.S. Raja Gaounder Vs. S.K. Senniappa Gounder and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in148Ind.Cas.848
AppellantV.S. Raja Gaounder
RespondentS.K. Senniappa Gounder and ors.
Cases ReferredJumna Bai v. Ramanathan Chetty
Excerpt:
letters patent (madras), clauses 13, 18 - power of high court to entertain insolvency petition of mufassil debtor and pass interim orders when mufassil court is closed--power to transfer pending cases. - - nor is it at all justified by the words of that clause which clearly mean that, with regard to the original jurisdiction of the high court that is to be governed by the presidency towns insolvency act and that with regard to the appellate jurisdiction in respect of cases arising under the provincial insolvency act that is to be regulated by that act......to insolvent debtors in india.5. the learned counsel for the respondent concedes that under that clause the high court is not empowered to adjudicate a debtor, who is outside the limits of the presidency town, an insolvent, but be says that it gives, that power when the mufassil courts which would ordinarily exercise the jurisdiction happen to be closed. it seems to me that, having conceded that the high court has no authority to adjudicate an insolvent who is in the mufassil, it is quite impossible to argue that it is given that power for a limited period during the year viz., when the high court is open during the vacation and when the mufassil courts are closed. that seem to me to be an impossible position. nor is it at all justified by the words of that clause which clearly mean.....
Judgment:

Lakshmana Rao, J.

1. This is an appeal from an order made by Stone, J., during vacation of 1932. The appellant here was the decree-holder in O.S. No. 653 of 1929 in the District Munsifs Court of Bapatla. In execution of that decree he brought the, respondent's property to sale, the sale being fixed for June 13,1932. Before the sale could take place, however, an application was presented to this High Court during the vacation to receive an insolvency petition against the judgment-debtor presented by the respondent and asking at the same time for a stay of the sale. An interim order was made by Stone, J., on June 11, 1932, as follows:

Sale stayed. O.R. Guntur interim Receiver. Notice for June 21 1932.

2. On June 21,1.932, that order was made final, the papers being transmitted to the Sub-Court of Tenali for disposal after the reopening of that Court. The application was presented in this High Court because at that time the Sub-Court of Tenali, which was the proper Court to deal with the matter, was closed for the summer recess and was not due to be re-opened until June 27, 1932.

3. The question before us in this appeal is whether this High Court had jurisdiction to pass the order passed by our learned brother. That question depends upon whether the High Court has, during the vacation, any power to make any order with regard to any matter within the jurisdiction of a Mufassil Court which is, at the time, closed or the summer recess which matter was not pending at the time, of the closing of that Court. A similar position dross in Jumna Bai v. Ramanathan Chetty 113 Ind. Cas.412 : 52 M. 52 : 55 M.L.J. 690 : 28 L.W. 864 : A.I.R. 1929 Mad. 29 a decision of Ramesam, J., with which I agree. He there held that, where a suit is sending in a Mufassil Court which is closed for the summer recess, the High Court can transfer the case to itself under Clause 13 of the Letters Patent and pass interim orders in the case but that such an application for such transfer must be made on the original side of the High Court and that, with regard to cases or suits which are not pending in a Mufassil Court, the High Court has no power to make any order with regard to them. In the course of his judgment our learned brother very carefully discusses the various clauses in the Letters Patent in order to see whether any of them gives the jurisdiction to the High Court which was claimed by the petitioner in that case and is claimed By the respondent here arid he also refers to Section 107 of the Government of India Act. There is-one clause, however, in the Letters Patent to which he does not refer and that is Clause 18 which provides for the jurisdiction of the High Court in insolvency matters; and the respondent here claims that, by reason of that clause, the High Court has jurisdiction to pass such an order as was passed by Stone, J., in this case; and it is the latter part of that clause which is in particular relied upon. It is perhaps necessary to set out the whole of the clause which reads as follows:

And we do further ordain that the Court for relief of insolvent debtors at Madras shall be held before one of the Judges of the said High Court of Judicature at Madras and the said High Court, and any such Judge thereof.

4. And it is the following part which is relied upon by the respondent:

shall have access and exercise within the Presidency of Madras, such powers and authorities with respect of original and appellate jurisdiction and other wise as are constituted by the Jaws relating to insolvent debtors in India.

5. The learned Counsel for the respondent concedes that under that clause the High Court is not empowered to adjudicate a debtor, who is outside the limits of the presidency town, an insolvent, but be says that it gives, that power when the Mufassil Courts which would ordinarily exercise the jurisdiction happen to be closed. It seems to me that, having conceded that the High Court has no authority to adjudicate an insolvent who is in the mufassil, it is quite impossible to argue that it is given that power for a limited period during the year viz., when the High Court is open during the vacation and when the Mufassil Courts are closed. That seem to me to be an impossible position. Nor is it at all justified by the words of that clause which clearly mean that, with regard to the original jurisdiction of the High Court that is to be governed by the Presidency Towns Insolvency Act and that with regard to the appellate jurisdiction in respect of cases arising under the Provincial Insolvency Act that is to be regulated by that Act. This means that the High Court only has power to deal with provincial insolvencies in the exercise of its appellate jurisdiction and that in its original jurisdiction it only has power to deal with insolvencies which are in the presidency town itself such as come within the scope of the Presidency Towns Insolvency Act. Neither of those Acts give the High Court any power to make any such order as was passed in this case. Therefore, the order passed by our learned brother was without jurisdiction and must be set aside and this appeal allowed with costs.

Bardswell, J.

6. I agree.


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