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Andhra High Court · body

2009 DIGILAW 212 (AP)

Chuppala Obulesu v. Gottimukkala Subbarayudu

2009-03-26

P.S.NARAYANA

body2009
Judgment :- Heard Sri D. Raghava Reddy learned counsel representing the appellant. This Civil Miscellaneous Second Appeal is coming up for admission. The appellant herein preferred the present appeal being aggrieved by an order dated 28-07-2008 made by the learned First Additional District Judge, Kadapa in A.S.No.106 of 2005 confirming the order dated 04-10-2004 made in I.P.No.49 of 2002 on the file of the Senor Civil Judge, Kadapa filed by one of the creditors to annul the alienation and the said I.P. was allowed declaring the first respondent therein as an insolvent and also annulling Ex.A.5 document. The secured creditor, being aggrieved by the same, carried the matter by way of appeal A.S.No.106 of 2005 aforesaid and the said appeal was dismissed. Aggrieved by the same, the secured creditor preferred the present appeal. The learned counsel for the appellant would contend that though initially he presented C.R.P., in the light of the objection raised by the Registry, after complying with certain formalities the same was registered as Civil Miscellaneous Second Appeal and thus it is coming up for admission before this Court. It appears that in the light of second proviso to Section 75(1) of the Provincial Insolvency Act, 1920 (for short "the Act"), the Registry had thought of numbering the C.R.P. as Civil Miscellaneous Second Appeal. Section 75 of the Act deals with appeals and the same reads as hereunder: " Appeals: (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 case and pass such 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 (1) of Section 100 of the Code of Civil Procedure, 1908 (5 of 1098). 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 periods of limitation for appeals to the District Court and to the High Court under this section shall be thirty days and ninety days, respectively." As already referred to supra, this is not a matter, which had been decided by the learned Senior Civil Judge, Kadapa under Section 4 of the Act. It is not in controversy that one of the creditors filed the creditors petition for annulment of alienation and now the secured creditor is fighting the litigation in the light of the specific provisions of the Act. The first proviso to Section 75(1) of the Act specifies "provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was in accordance with law, may call for the case and pass such order with respect thereto as it thinks fit". On a careful reading of sub-section 1 of Section 75 of the Act along with the proviso, it is clear that as against such an order made in appeal by the District court, C.R.P. alone would lie to this Court and Civil Miscellaneous Second Appeal as such cannot be maintained. It is no doubt true that the second proviso to Section 75(1) of the Act specifies "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 (1) of Section 100 of the Code of Civil Procedure, 1908. It is needless to say that the second proviso to Section 75 (1) of the Act is not applicable to the present case. In the light of the same, this Court is of the considered opinion that Civil Revision Petition alone would be maintainable. It is needless to say that the second proviso to Section 75 (1) of the Act is not applicable to the present case. In the light of the same, this Court is of the considered opinion that Civil Revision Petition alone would be maintainable. Hence, the learned counsel is permitted to get this Civil Miscellaneous Second Appeal converted into Civil Revision Petition. Registry to number the C.M.S.A. as C.R.P. and list the matter before appropriate court after the learned counsel for the appellant complying with the other necessary formalities if any in accordance with law.