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1942 DIGILAW 61 (ALL)

Kadar Nath v. Ali Ahmad

1942-04-13

DAR, GANGA NATH, IQBAL AHMAD

body1942
JUDGMENT Iqbal Ahmad, C.J., Ganga Nath and Dar, JJ. - This reference to the present Full Bench arises under the following circumstances : In certain insolvency proceedings before the Small Cause Court Judge of Agra, the learned Judge passed a conditional order of discharge so far as the insolvent was concerned. Two of the creditors who are the Appellants in the present Letters Patent appeal, filed an appeal to the District Judge against the last mentioned order of the Small Cause Court Judge. The District Judge allowed the appeal and remanded the case to the Small Cause Court Judge for decision according to certain directions that were embodied in the judgment of the District Judge. Against the decision of the District Judge a second appeal was filed in this Court and was entertained by a learned Judge who allowed the appeal, set aside the order of remand passed by the District Judge and restored the order of the Insolvency Judge. The present Letters Patent appeal has been filed against the judgment of the learned Judge of this Court. 2. The appeal came up for hearing before a Bench and the Bench in view of the conflict of opinion between this Court and the Madras High Court on the question as to whether under the provisions of the Provincial Insolvency Act and in particular u/s 48(2) of that Act, the insolvency court has jurisdiction to direct the payment of interest by an insolvent at a rate higher than 6 per cent, referred the case to a Full Bench. This, Court in Ganga Sahai and Others Vs. Mukarram Ali Khan, AIR 1926 All 361 ., answered the said question in the negative, whereas the Madras High Court in (Penumetsa) China Venkataraju and Another Vs. Pulavarthi Lakshmanaswami and Another, AIR 1931 Mad 729 held that the insolvency court has jurisdiction to direct payment of interest at a rate higher than 6 per cent. 3. A preliminary objection has been raised in this appeal by Dr. Asthana who appears on behalf of the insovlent. He contends that as the order passed by the Insolvency Judge was not an order u/s 4 of the Insolvency Act. No second appeal lay to the High Court. He proceeds to argue that as no second appeal lay to this Court, no Letters Patent appeal lies against the judgment of the learned Judge of this Court. 4. He contends that as the order passed by the Insolvency Judge was not an order u/s 4 of the Insolvency Act. No second appeal lay to the High Court. He proceeds to argue that as no second appeal lay to this Court, no Letters Patent appeal lies against the judgment of the learned Judge of this Court. 4. In cur judgment this contention is correct and ought to prevail. By Section 75, a right of appeal is given to the district court by any debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a court subordinate to a district court. But it is further provided that the order of the district court upon such appeal shall be final. In other words, only one right of appeal is provided by the Insolvency Act so far as decisions other than decisions u/s 4 of the Act are concerned. The finality of the appellate order of the district court can be challenged only by way of revision to this Court. This is provided by the proviso to Sub-clause (sic) of Section 75. 5. It is clear, therefore, that no second appeal lay to this Court. The judgment of the learned Judge of this Court that is the subject of appeal before us cannot, therefore, be treated-as a judgment in a second appeal. No Letters Patent appeal, therefore, lies u/s 10 of Letters Patent. 6. The preliminary objection is accordingly allowed and the present appeal is dismissed but in the circumstances of the present case, we direct the parties to bear their own costs of this appeal.