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Khemkarandas Khemka Vs. Huribux Fatehpunia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal1215
AppellantKhemkarandas Khemka
RespondentHuribux Fatehpunia
Cases ReferredWebber v. Ex
Excerpt:
- .....point has been taken by the creditor on the appeal that; the appeal cannot proceed as the official assignee has neither been made a party to the appeal nor served with notice of the appeal. we wore referred in support of this to the case of in re. webber v. ex parts webber (1890) 24 q b.d. 313. the head-note runs as follows: 'notice of an appeal against a receiving order, whether to a division court in bankruptcy or to the court of appeal must in every case, whether proceedings under the order have or have not been stayed, be served on the official receiver within the time limited by the rules for service on the petitioning creditor.' in that case in the division court the learned judges held that the preliminary objection taken against the appeal on the ground of non-service of.....
Judgment:

1. This is an appeal against an order of adjudication passed on the 17th March 1925 at the instance of a creditor.

2. A preliminary point has been taken by the creditor on the appeal that; the appeal cannot proceed as the Official Assignee has neither been made a party to the appeal nor served with notice of the appeal. We wore referred in support of this to the case of In re. Webber v. Ex parts Webber (1890) 24 Q B.D. 313. The head-note runs as follows: 'Notice of an appeal against a receiving order, whether to a Division Court in Bankruptcy or to the Court of appeal must in every case, whether proceedings under the order have or have not been stayed, be served on the Official Receiver within the time limited by the rules for service on the petitioning creditor.' In that case in the Division Court the learned Judges held that the preliminary objection taken against the appeal on the ground of non-service of notice on the Official Receiver must prevail. Against that order an appeal was preferred to the appeal Court and Lord Justice Lindley points out the danger of collusive applications to discharge receiving orders unless the Official Assignee were served. It seems to me that similar considerations apply in this country and we think that it is necessary and desirable that in appeals against an order of adjudication notice of the appeal should be served on the Official Assignee. It is true that there is no provision in the Presidency Towns Insolvency Act, so far as I can discover, nor in the rules framed under the Act, which makes such service obligatory, but it seems to me that on general principles such a notice should be given. Apparently, the ground of necessity for such service in England is based on the rules and practice of the Supreme Court, Order 58, Rule 2, which provides that notice of appeal should be served upon all parties directly affected by the appeal and in the notes to that order in the Annual Practice for 1925, at p. 1134, it is stated that notice of appeal from the refusal to annul an adjudication in bankruptcy or against a receiving order must be served on the. trustee as well as on the petitioning creditor. There is no provision in the Civil Procedure Code in this country which is identical with the provisions of Order 58, Rule 2, of the Rules of the Supreme Court in England, but we think, as we have already stated, that on general grounds it is necessary that notice should be given to the Official Assignee, and we accordingly direct that this matter do stand over for one week in order that notice of the appeal may be served on the Official Assignee. When the Official Assignee, has bean served it will be for him to decide whether his presence is necessary at the hearing of the appeal.

3. An objection was made that the time for appealing had expired as the necessary time in which to appeal from the adjudication order had long since expired. But it is open to us in our discretion to extend the time, if necessary; and if such an order is necessary, which is not so in the present case as the Official Assignee was not a party to the petition on which the adjudication order was made, this is eminently a case, having regard to she doubts which have been raised as to the practice, in which we should exercise that power.

4. The question of costs will be dealt with when the appeal will be heard a week hence.


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