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John A. David Vs. A.L.A. Alagappa Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1935Mad432; 158Ind.Cas.59
AppellantJohn A. David
RespondentA.L.A. Alagappa Chettiar and ors.
Excerpt:
provincial insolvency act (v of 1920), sections 4, 75, 53 and 54 - petition under section 53 or section 54--s. 4, if applies--right of appeal under the act, if strictly limited by section 75. - pandrang row, j.1. this is an appeal from the order of the district judge of ramnad at madura, dated march 12, 1929, in appeal from the order of the subordinate judge of ramnad, dated february 23, 1925, on an application filed by the official receiver and one of the creditors of the insolvents in i.p. no. 6 of 1913 for declaring as void certain deeds of transfer executed by the insolvents. the subordinate judge declared the transfers to be void under section 54, provincial insolvency act, so far as the insolvents' shares in the properties were concerned. on appeal the district judge came to the conclusion that they were not voidable and that they had not been shown to be fraudulent preferences, and that on the other hand, even assuming that section 53 applied, they were made bona fide for.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the District Judge of Ramnad at Madura, dated March 12, 1929, in appeal from the order of the Subordinate Judge of Ramnad, dated February 23, 1925, on an application filed by the Official Receiver and one of the creditors of the insolvents in I.P. No. 6 of 1913 for declaring as void certain deeds of transfer executed by the insolvents. The Subordinate Judge declared the transfers to be void under Section 54, Provincial Insolvency Act, so far as the insolvents' shares in the properties were concerned. On appeal the District Judge came to the conclusion that they were not voidable and that they had not been shown to be fraudulent preferences, and that on the other hand, even assuming that Section 53 applied, they were made bona fide for valuable consideration. One preliminary objection raised to this appeal is that it is not competent as no appeal lies from the appellate order passed by the District Court under Section 75, Provincial Insolvency Act. The point is covered by authority: vide, Alagiri Subba Naick v. ''Official Receiver, Tivnevelly 132 Ind. Cas. 641 : A.I.R. 1931 Mad. 745 : 54 M 989; Ind.Rul. (1931) Mad. 673 : 34 L.W. 105 : 61 M.L.J. 820. It is obvious that to a petition to set aside or declare as void a deed of transfer made by an insolvent under Section 53 or Section 54, Provincial Insolvency Act, Section 4 of the Act has no application. The right of appeal is strictly limited by the provisions of Section 75 of the Act and it is clear on the point that there can be no appeal from a decision of the District Judge passed in an appeal from a decision of a Subordinate Court, unless the latter is one under Section 4 of the Act. The preliminary objection must, therefore, prevail and the appeal pronounced to be incompetent. I have been asked during the hearing by the appellant's Advocate to treat this appeal as a revision petition, but I see no sufficient reason to grant the request because the question that arises for determination is a question of fact which has been decided by the District Judge in appeal. There is nothing in the order of the District Judge to show that he did not apply the law on the subject correctly to the facts of the case before him, and such being the case, there can be no justification for interference in revision. The appeal is accordingly dismissed with costs.


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