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2007 DIGILAW 845 (AP)

Shaik Mabi v. Nomula Sarada

2007-09-06

P.S.NARAYANA

body2007
JUDGMENT:-Heard Sri Saigangadhar Chamarti. 2. The second appeal is preferred as against the judgment and decree made in AS No.9 of 2006 on the file of the Court of Principal District Judge, Nellore, dated 15.3.2007. The appellant had preferred the second appeal being aggrieved of the said decree and judgment made in AS No.9 of 2006, which was filed as against an order made in IP No.4 of 2004 on the file of the Court of Senior Civil Judge, Kovvur, Nellore District. The said application, IP No.4 of 2004 was filed under Sections 9 and 6 of the Provincial Insolvency Act, 1920 to declare the first respondent as insolvent and the sale transaction in favour of the third respondent, dated 3.12.2003 as null and void. 3. Section 75 of the Provincial Insolvency Act, 1920 deals with appeals and the relevant portion of the said provision reads as hereunder : (I) The 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 may appeal to the District Court, and the order of the District Court upon such appeal shan 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 was according to law, may can for the same and pass such other order with respect thereto as it thinks fit; Provided, further, that any such person aggrieved by a decision of the District Court on appeal from a decision of a Subordinate Court under Section 4 may appeal to the High Court on any of the grounds mentioned in sub-section (I) 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-I, 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. (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 period of limitation for appeals to the District Court and to the High Court Nellore District. The said application, IP No.4 of 2004 was filed under Sections 9 and 6 of the Provincial Insolvency Act, 1920 to declare the first respondent as insolvent and the sale transaction in favour of the third respondent, dated 3.12.2003 as null and void. 3. Section 75 of the Provincial Insolvency Act, 1920 deals with appeals and the relevant portion of the said provision reads as hereunder : (1) The 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 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 was according to law, may call for the same and pass such other order with respect thereto as it thinks fit; Provided, further, that any such person aggrieved by a decision of the District Court on appeal from a decision of a Subordinate Court under Section 4 may appeal to the High Court on any of the grounds mentioned in sub-section (I) 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-I, 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 period of limitation for appeals to the District Court and to the High Court under this section shall be thirty days and ninety days respectively. 4. (4) The period of limitation for appeals to the District Court and to the High Court under this section shall be thirty days and ninety days respectively. 4. It is also pertinent to note that subsection (1) specifies that on order made by the District Court upon such appeal shall be final. It is not the case of the appellant that this order was made under Section 4 of the said Act. In Wamanrao Deorao v. Shrikumar Jaikumar and another. AIR (33) 1946 Nag. 42 (DB). the Division Bench of the Nagpur High Court held that in the matter of appeals in insolvency cases, the Court must be governed by Section 75(1) of the Act, which deals with the question of appeals and must not look to the provisions of the Civil Procedure Code, since no appeal lies unless one is expressly conferred by statute. 5. It is also pertinent to note that Section 75 of the said Act itself specifies limited applicability of Section 100 of the Code of Civil Procedure. The decisions in Bhagwanji Haridas v. PreJnji Parashotham and another, AIR 1959 Born. 47 (V46 C16) (At Rajkot) and Baji Rao Bhawan Rao v. Bansilal Ganeshlal and another, AIR 1963 Born. 212 (V59 C45), also may be referred to in this context. 6. In the light of the same, this Court is of the considered opinion that since Section 100 of the Code of Civil Procedure cannot be invoked in the present set of facts, the second appeal as such is not maintainable. 7. It is brought to the notice of this Court that inasmuch as CRP would lie to this Court and in view of the same the Counsel is permitted to convert the same into an appropriate proceeding. 8. In the light of the peculiar facts and circumstances, the Counsel on record is permitted to convert the same into an appropriate proceeding after complying with the other formalities, if any.