JUDGMENT 1. :- These cases raise a question of some importance relating to the construction of section 75(3) of the Provincial insolvency Act, 1920 (for short the Act). 2. Before narrating the necessary facts it will be useful to refer section 75 of the Act which runs as under - "75. Appeals.-(1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come from or an order made in the exercise of insolvency jurisdiction by a court subordinate to a District Court may appeal to the District Court, and the order of the District Court upon such appeal shall be final; Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court as according to law, may call for the case and pass such order with respect thereto as it thinks fit : Provided, further that any such person aggrieved by a decision of a District Court on appeal from a decision of subordinate Court under section 4 may appeal to the High Court on any of the grounds mentioned in sub-section (1) of Section 100 of the Code of Civil Procedure , 1908. (2) Any such person aggrieved by any such decision or order of a District Court as is specified in schedule 1st, come to or made otherwise than in appeal from an order made by a subordinate Court, may appeal to the High Court. (3) Any such person aggrieved by any other order made by a District Court otherwise than in appeal from an order made by a subordinate Court may appeal to the High Court by leave of the District Court or of the High Court. (4) The periods of limitation for appeal to the District Court and to the High Court under this section shall be thirty days and ninety days respectively." 3. A look at sub-section (3) of section 75 of the Act goes to show that a person aggrieved by the order of the District court (otherwise than in appeal from an order made by a subordinate court) may appeal to the High Court by leave of the District Court or of the High Court. (Emphasis supplied) 4. The appellant was adjudged insolvent by the learned District Judge Jaipur City under the provisions of the Act. (Emphasis supplied) 4. The appellant was adjudged insolvent by the learned District Judge Jaipur City under the provisions of the Act. The agricultural land of the appellant was auctioned by the Receiver and bid was confirmed by the District Judge in favour of auction-purchaser (respondent No. 13) vide order dated May 6, 1983. Against this order the appeal No. 169 of 1983 was filed by the appellant. 5. The appellant, after filing appeal No. 169 of 1983, submitted an application on January 3, 1985 before the learned District Judge with the averments that auction proceedings were void ab initio being in contravention of Sections 28 and 60 of the Act and also contravened section 60 of the Code of Civil Procedure and other relevant provisions of the Rajasthan Land Revenue Act 1956 and the Rajasthan Tenancy Act, 1955, therefore all proceedings in respect of auction of property be declared null and void. The learned District Judge vide its order dated January 29, 1988 dismissed the application. Against this order the appellant had preferred the appeal No. 315 of 1988. 6. Admittedly both the appeals were filed without obtaining the leave of the District court or of this court as was necessary under sub-section (3) of section 75 of the Act. A perusal of the order sheets of the case filed demonstrates that both the appeals No. 169 of 1983 and 315 of 1988 were respectively admitted by this court (Hon'ble S.N. Bhargava J. as he then was) on Sept. 7, 1983 and July 5, 1989. 7. It appears that the appellant neither cared to examine the provisions contained in sub-section (3) of section 75 of the Act, nor brought these provisions to the knowledge of the court and this court admitted the appeals without looking to the relevant statutory provisions. 8. Arguments in part were heard by this court on Feb. 3, 1997 and the learned counsel for the auction purchaser raised preliminary objection about the competency of the appeals in view of section 75(3) of the Act. The cases were posted for further arguments on Feb. 5, 1997. The appellant moved an application under section 151 Civil Procedure Code and section 75(4) of the Act on Feb. 5, 1991, in appeal No. 169 of 1983 as under - "Application under Section 151 Civil Procedure Code read with Section 75(4) of the Provincial Insolvency Act, 1920. The cases were posted for further arguments on Feb. 5, 1997. The appellant moved an application under section 151 Civil Procedure Code and section 75(4) of the Act on Feb. 5, 1991, in appeal No. 169 of 1983 as under - "Application under Section 151 Civil Procedure Code read with Section 75(4) of the Provincial Insolvency Act, 1920. MAY IT PLEASE YOUR LORDSHIPS : The appellant most respectfully begs to submit as under- (1) That the case was fixed before the Hon'ble Court on 3.2.97. The learned counsel for respondent pointed out that application for grant of leave has not been filed as required under section 75(4) of the Provincial Insolvency Act. (2) That the appeal was filed in the year 1983 by late Shri K.L. Saxena Advocate. The appellant himself is not aware of any such legal requirement. The counsel who filed the appeal as well as the subsequent counsel did not tell the appellant about such a requirement. He has been told about this objection/requirement only on 4.2.1997 by his counsel after it was pointed out on 4.2.1997. The registry of the Hon'ble Court also did not point out any such defect. (3) That in the eye of law, once the appeal is admitted, it should be deemed that leave has been granted impliedly. The grounds for admission of appeal as well as grant of leave can not be said to be different. Moreover important question of law and jurisdiction of the civil court are involved in this case. The respondent also did not raise such objection prior to 3.2.1997. Therefore, in the interest of justice, the leave may be deemed to have been granted. (4) That however, alternatively, the present application may kindly be treated as an application for grant of leave to appeal on the grounds mentioned in the memo of appeal already admitted for hearing. This will be in the interest of justice. The contents of the memo of appeal as amended may be treated part of this application. (5) That there was no mistake on the part of the appellant as he was never made aware of any such requirement by his counsel. For fault of counsel, if any, the appellant should not suffer. This will be in the interest of justice. The contents of the memo of appeal as amended may be treated part of this application. (5) That there was no mistake on the part of the appellant as he was never made aware of any such requirement by his counsel. For fault of counsel, if any, the appellant should not suffer. It is therefore, most respectfully prayed that the application may kindly be allowed and the Hon'ble Court be pleased to hold that the leave to appeal is deemed to have been granted or in the alternative leave may kindly be granted now, in the interest of justice. Humble appellant through his counsel : (N.K. Maloo) Advocate" 9. Above application was supported by an affidavit of appellant Shri Mahesh Kripal. However, no such application was filed in appeal No. 315 of 1988. Along with the said application, application under section 5 of the Limitation Act was filed with a request that delay in filing the application seeking leave to appeal may be condoned. 10. On behalf of the auction purchaser reply to the application was filed with the averments that the admission of appeal in routine course cannot be deemed as granting of leave impliedly under the provisions of the Act. The grounds for the admission of appeal and the grounds for the leave to appeal do not stand at the same wave length. It is evident from the order sheet dated April 28, 1983 of the file of the court below that the appellant had consented to the impugned order dated April 28, 1983, therefore no ground left for seeking leave to appeal. By giving consent, the appellant had waived all his objections and took upon himself the task of bringing a person who would offer a security to the satisfaction of the court. The appellant had failed to produce security and the court below passed the impugned order. In absence of leave applied for by the appellant within 90 days as per section 75(4) of the Act the appeal deserves to be dismissed. The inordinate delay in filing the application as a result of due diligence, due care and caution cannot be entertained at this stage. 11. Rejoinder to the reply was filed by the appellant stating therein that appeal was admitted unconditionally therefore it should be deemed that leave was granted. The inordinate delay in filing the application as a result of due diligence, due care and caution cannot be entertained at this stage. 11. Rejoinder to the reply was filed by the appellant stating therein that appeal was admitted unconditionally therefore it should be deemed that leave was granted. The application for grant of leave was filed for the sake of abundant caution, in order to meet the technical objection. The proverb "Ignorance of law is not an excuse" is not applicable in the Indian circumstances. 12. I shall now take up the preliminary objection raised in respect of competency of the appeals. 13. Mr. N.K. Maloo, learned counsel appearing for the appellant canvassed that after admission of appeals by this court, it should be deemed that leave was granted. Alternatively the learned counsel submitted that in the facts and circumstances of the case, the leave can be granted now. In support of his submissions the learned counsel placed reliance on the following authorities- (1) Radha vs. M.C. White (AIR 1923 Allahabad 466 D.B.) (2) Official Receiver Muzaffar Nagar Vs. Chandra Shekhar AIR 1977 Allahabad 77 (3) Ananthanarayana Aiyar Vs. Ramsubba Aiyar (AIR 1924 Madras 345 D. B.) (4) M.W. Elliot Official Reciver Cuddppah vs. K. Subbiah (AIR 1927 Madras 869 D.B.) (5) Lorind Chand vs. Md. Akram (AIR 1933 Lahore 642) (6) Gopal Ram vs. Magniram (AIR 1928 Patna 338 D.B.) (7) Mangat Rai vs. Lala Mohanlal (AIR 1936 Rangoon 413 D.B.) (8) Rafiq vs. Munshi Lal ( AIR 1981 Supreme Court 1400) . 14. On the other hand, Mr. M.C. Surana learned counsel for the auction purchaser urged that impugned order dated May 6, 1983 was passed with the consent of the appellant therefore he intentionally concealed the legal position from this court. If this court admitted appeals overlooking the legal provisions it does not mean that leave was granted impliedly. The court below had jurisdiction to pass the impugned orders. Mr. If this court admitted appeals overlooking the legal provisions it does not mean that leave was granted impliedly. The court below had jurisdiction to pass the impugned orders. Mr. Surana the learned counsel placed reliance on the following - (9) Ummedi B. Venkata Reddi vs. Kamala Narayana Reddi (AIR 1950 Madras 630 (D.B.)) (10) A.T.P. Shri Chandra vs. Swarna Silk House (AIR 1971 Mysore 255) (11) Gyan Singh vs. Sajjada (AIR 1937 Lahore 249) (12) Davood Mahodeen vs. Sahabdeen (AIR 1937 Madras 667) (D.B.) (13) Sreerammamma vs. Official Receiver Guntur (AIR 1955 Andhra 115) (14) Balli vs. Nand Lal ( AIR 1916 Allahabad 349 D.B.) (15) Shop Idan Lachhmi Narain vs. Bahadur Chand (AIR 1927 Lahore 914) (16) Shibjee Shah vs. Hira Lal (AIR 1928 Patna 338 (D.B.) (17) Gopal Ram vs. Magni Ram (AIR 1928 Patna 338 (D.B.) . (18) Madan Mohan vs. Emperor (AIR 1939 Calcutta 264) 15. Radha vs. M.C. White (supra) was the case where the body of the creditors had challenged the order of the District Judge making a personal allowance to the insolvent out of his property for the support of himself and his family. Though leave was required under the Act but was not applied until a late stage of the proceedings, as the case was argued as one of principle and required careful consideration, High Court granted the necessary leave. 16. Official Receiver Muzaffar Nagar vs. Chandra Shekhar (supra) was the case where it was held that leave to appeal may be granted at the stage of final hearing if the court is satisfied that question involved required consideration. 17. Ananthanarayana Aiyar vs. Ramsubba Aiyar (supra) was the case where it was held that the court can excuses delay under section 78 in the presentation of appeal or application and in a proper case High Court will excuse the delay in asking for leave to appeal under section 75(3). 18. M.W. Elliot Official Receiver Cuddppah vs. K. Subbiah (supra) was the case where the Madras High Court held that under section 75(3), it is not necessary that the appellant must apply for leave prior to filing the appeal in the High Court. 19. Lorind Chand vs. Md. Akram (supra) was the case where a preliminary objection was raised that appeal does not come within the purview of section 75(1) of the Act and hence no second appeal lies. 19. Lorind Chand vs. Md. Akram (supra) was the case where a preliminary objection was raised that appeal does not come within the purview of section 75(1) of the Act and hence no second appeal lies. As appeal only lies under section 75(3) of the Act prior leave of the District Court or the High Court was necessary. The Lahore High Court under this situation observed thus : "In the present case the appeal having been admitted to a hearing, I think the best course will be to dispose of it on the merits." 20. Gopal Ram vs. Magniram (supra) was the case where the Patna High Court observed thus:- "I think in the circumstances of this case we should construe the order of the Court referred to above under Order 41 Rule 11 as granting leave. Even if this be not sufficient, I would after having heard the entire case consider that sufficient case has been made out by the appellant for obtaining leave to appeal and hereby grant the leave." 21. Mangat Rai vs. Lalta Mohanlal (supra) was the case where the Lahore High Court indicated thus : "No application for leave to appeal was made to the Division Bench admitting the appeal and I do not think it can be inferred that leave was granted because the appeal was admitted. The next question is whether leave can be granted now. The point is not free from difficulty but it appears that in rulings by the Calcutta, Allahabad and Madras High courts, leave was granted at the hearing though there is no discussion of the difficulty in any of the rulings. In the circumstances I think I should grant leave now and if necessary extend time under section 5 Limitation Act read with section 78 Provincial Insolvency Act." 22. R.K. Banerjee vs. Karuthan (supra) was the case where it was held that leave to appeal required by section 75(3) can be granted at any stage of proceedings and even on an oral application made in the course of the hearing of the appeal before the High Court. 23. Rafiq vs. Munshi Lal (supra) was the case where their Lordships of the Supreme Court propounded that a party should not suffer for misdemeanor or inaction of his counsel. The Apex court in this case directed that the costs be recovered from the appellant's counsel for inaction on his part. 23. Rafiq vs. Munshi Lal (supra) was the case where their Lordships of the Supreme Court propounded that a party should not suffer for misdemeanor or inaction of his counsel. The Apex court in this case directed that the costs be recovered from the appellant's counsel for inaction on his part. 24. The Division Bench of Madras High Court in Ummedi B. Venkata Reddi vs. Kamala Narayana Reddi (supra) observed thus- "It is the duty of the counsel before he files an appeal to investigate and make certain whether leave is or is not necessary. Where the appeal has been coming up in the list for considerable time and the error has not been rectified, the court will not allow an oral application for leave made at the time of hearing." 25. In A.T.P. Shri Chandra vs. Swarna Silk House (supra) it was held that in order to avail of the provisions contained in section 75(3) of the Act the condition to be filled is that the leave of the appellate court ought to be obtained. 26. In Gyan Singh vs. Sajjada (supra) appeal was filed without obtaining leave of the District Court and without making a prayer for leave in the grounds of appeal. There were no circumstances to show that the failure of the official Receiver to obtain leave of the District Court was due to a bonafide mistake i.e. a mistake which occurred in spite of the exercise of due care and caution. It was held that the appellant acted without due diligence in filing appeal without obtaining leave of the District Court and without making a prayer for leave in the grounds of appeal. Hence the appeal was incompetent. Nor could leave be granted at that stage. 27. The Division Bench of the Allahabad High Court in Balli vs. Nand Lal (supra) observed that where an order is appealable only by leave of the District Court or the High 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. 28. Shop Idan Lachhmi Narain, vs. Bahadur Chand (supra) was the case where it was held that no appeal lies under section 75(2) if leave is not applied for tinder sub-section (3). 29. 28. Shop Idan Lachhmi Narain, vs. Bahadur Chand (supra) was the case where it was held that no appeal lies under section 75(2) if leave is not applied for tinder sub-section (3). 29. Shibjee Shah vs. Hira Lal (supra) was the case where the D.B. of the Patna High Court propounded thus:- "The statute does not provide that leave may be granted on question of fact, nor does it provide tht the District Court should not grant leave on question of fact. The matter is, however, in the discretion of the District Court and it would not be right for us to interfere with the exercise of that discretion." 30. The Division Bench of Calcutta High Court in Madan Mohan vs. Emperor (supra) observed thus : "If there is any appeal against such an order, it can only be under section 75(3) and only by leave of either the District Court or the High Court. But a very strong case will be needed to justify the granting of such leave, where such leave has not been obtained, the appeal is incompetent." 31. The propositions emerging from the above mentioned decisions may be summed up thus : (1) Leave to appeal may be granted even at the stage of final hearing but a very strong case will be needed to justify the granting of such leave. (ii) It is the duty of the counsel before he files an appeal to investigate and make certain whether leave is or is not necessary. (iii) There must be circumstances to show that the failure of the appellant to obtain leave of the District Court was due to a bonafide mistake i.e. a mistake which occurred inspite of the exercise of due care and caution. (iv) Generally the memorandum of appeal should always be accompanied by a petition for leave to appeal and it should be made clear to the Judge that the appeal is not presented as one which lies as of right. (v) The discretion of the District Court in granting or refusing leave should not be interfered by the High Court. (Emphasis supplied) 32. At this juncture, I should bear in mind a crucial aspect in these cases. Learned District Court with the consent of appellant Mahesh Kripal and auction purchaser Jitendra Surana had drawn order sheet on April 28, 1983 as under- HINDI MATTER 361139 A 33. (Emphasis supplied) 32. At this juncture, I should bear in mind a crucial aspect in these cases. Learned District Court with the consent of appellant Mahesh Kripal and auction purchaser Jitendra Surana had drawn order sheet on April 28, 1983 as under- HINDI MATTER 361139 A 33. The order sheet dated 28.4.83 bears signatures of appellant Mahesh Kirpal. The directions given in the order sheet dated April 28, 1983 were not complied with by the appellants. This is evident from the order sheet dated 6.5.83, which reads as under- HINDI MATTER B But as jointly prayed by the appellant and the auction purchaser, the case was taken up on May 9, 1983 much prior to the date already fixed by court and with the consent of appellant Mahesh Kripal's Counsel following orders was passed. HINDI MATTER C The order sheets bear the signatures of Shri K.L. Saxena Advocate who was the counsel of Mahesh Kripal. The order sheet dated May 9, 1983 conclusively demonstrates that the appellant was the party in taking the case into consideration and in confirming the auction in favour of auction purchaser (respondent No. 13). This order dated May 9, 1983 has been called in question in appeal No. 169 of 1983. 34. It was necessary for the appellant to obtain leave of the learned court below but no prayer for obtaining such leave was made by the appellant before the District court as there was no occasion after giving consent to the confirmation of auction in favour of the respondent No.13. Circumstances do not exist in this case to show that the failure of the appellant to obtain leave of the District Court was due to a bonafide mistake. 35. It is now necessary to refer the observations made by Hon'ble Walsh J. in Balji vs. Nand Lal (AIR 1916 Allahabad 349) - "I want to add one word. I attach very great importance to the conduct of matters by way of petition before a Single Judge. 35. It is now necessary to refer the observations made by Hon'ble Walsh J. in Balji vs. Nand Lal (AIR 1916 Allahabad 349) - "I want to add one word. I attach very great importance to the conduct of matters by way of petition before a Single Judge. Where counsel are applying ex parte for admission they ought to conduct themselves as if the matter were uiberrima fid, that is to say, where they have informed themselves that the matter for which admission is sought is a matter which requires leave of the court in order to give a right of appeal at all, the court which is asked to admit the appeal should be so informed. It is obvious there are many reasons why that ought to be done. There is one reason above all, otherwise time of the Judge and what is more important, the time of the Bar, when petitions are being heard, is unnecessary occupied by the Judge going out of his own way to ascertain for himself whether the matter is appealable or not. When counsel are preparing memorandum of appeal they must at least satisfy themselves whether there is an absolute right to appeal or a right to appeal by leave only, and in the later event it is obvious that they ought to ask for leave and draw-the attention of the court when applying for admission that it is a matter in which leave is required as a condition precedent. 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 making these general observations I am not referring in any way to the appellant's counsel in this case, inasmuch as, he was not present when his appeal was presented for admission By the Judge. I would further add that as a general rule where a right of appeal to the High Court is given by leave of the District Court or of the High Court the application for leave ought in the first instance to be made to the court which dealt with the matter. I would further add that as a general rule where a right of appeal to the High Court is given by leave of the District Court or of the High Court the application for leave ought in the first instance to be made to the court which dealt with the matter. Speaking for myself if an application for leave is made before me, I would not grant it unless it was made in the first instance to the court below." (Emphasis supplied) 36. The appellant had called in question two orders of the court below but applications were not made in the first instances i.e. before the learned District Court seeking leave to appeal against the said orders to the High Court. It was not made clear by the appellant to the learned Single Judge of this court at the time of admission that there was right to appeal by leave only and the learned Single Judge without examining the provisions contained in section 75(3) of the Act, admitted the appeals without being satisfied that the appellant had absolute right to appeal or not. Therefore in the facts and circumstances of these cases it cannot be deemed while admitting the appeal, this court granted leave impliedly. The grounds mentioned by the appellant in his application under section 75(4) of the Act read with section 151 Civil Procedure Code are not acceptable to me. It was not necessary for the counsel to make aware the appellant about the legal requirements. It was the duty of the learned counsel for the appellant to move application before the District Court for obtaining leave to appeal. But as already stated, there was no occasion to pray for leave to appeal before the District Court as the appellant had given consent to the confirmation of auction in favour of the respondent No. 13. 37. It was the duty of the learned counsel for the appellant to move application before the District Court for obtaining leave to appeal. But as already stated, there was no occasion to pray for leave to appeal before the District Court as the appellant had given consent to the confirmation of auction in favour of the respondent No. 13. 37. Attempt was made to establish that the learned District Court had no jurisdiction to confirm the auction and the agricultural land cannot he attached, auctioned or sold in view of the provisions contained in the Code of Civil Procedure, the Rajasthan Land Revenue Act, 1956 and the Rajasthan Tenancy Act, 1955 but these arguments were dealt with in details by the learned District Judge in his subsequent order dated January 29, 1988 and in absence of leave sought before the District Court, I am not inclined to grant leave to the appellant now. Subscribing the views expressed by Hon'ble Walsh J. in Balli vs. Nand Lal (supra), I observe that unless the application for leave to appeal is made before the District Judge in the first instance, the High Court should not grant leave in exercise of powers under section 75(3) of the Act. The prayer for leave in both the appeals is therefore declined. (Emphasis supplied) 38. The arguments addressed before me covered a wide range but as I declined leave to appeal, it is not necessary for me to discuss the other rulings cited at the Bar and to pronounce in detail on the various aspects involved in the matter. The application filed under Order 41 Rule 27 Civil Procedure Code also does not require consideration under these circumstances. 39. In the result both the appeals are dismissed being incompetent. Record of the case be sent back forthwith. Parties are directed to appear before the learned District Judge Jaipur City on Sept. 9, 1997. Costs easy.Appeals Dismissed. *******