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2012 DIGILAW 513 (CAL)

HIMANGSU RAY PAREKH v. DEBENDRA KUMAR CHOWDHURY

2012-06-13

MURARI PRASAD SHRIVASTAVA, SUBHRO KAMAL MUKHERJEE

body2012
JUDGMENT 1. This is an appeal against judgment and order dated August 7, 2009 passed by the learned Additional District Judge, Fourth Court at Alipore, district: South 24 Parganas, in Insolvency Case No. 314 of 2005. 2. By the order impugned, the learned Additional District Judge allowed an application filed under Order 1, Rule 10 read with section 151 of the Code of Civil Procedure filed by the petitioner/creditor praying for addition of one Shrimati Manju Parekh as a defendant in the said proceeding. 3. The application was filed, inter alia, on the allegation that the debtor/ defendant No.1 transferred his property being Flat No. 4F, Hrishikesh Apartment, at Premises No. 1/1. Ashutosh Chowdhury Lane, Kolkata -700 019, to his wife Shrimati Manju Parekh. 4. The learned Trial Judge, in the order impugned, recorded that the petitioner/creditor applied under the sub-section (2) of section 13 of the Provincial Insolvency Act, 1920, (hereinafter referred to as 'the said Act of 1920') against the defendant No.1, namely, Himangsu Ray Parekh on May 11,2005. 5. Section 7 of the said Act of 1920 provides that, subject to the conditions specified in the said Act, if a debtor commits acts of in solvency, an insolvency petition may be presented either by a creditor or by the debtor, and the Court may, on such petition, make an order adjudging him an insolvent. 6. Section 9 of the said Act of 1920 specifies the conditions on which the creditor may present an insolvency petition against a debtor. 7. Section 11 stipulates that every insolvency petition shall be presented to a Court having jurisdiction under the said Act of 1920, in any local area in which the debtor, ordinarily, resides or carries on business, or personally works for gain, or if he has been arrested or imprisoned, where he is in custody. 8. Section 12 of the said Act of 1920 provides that every insolvency petition shall be in writing and shall be signed and verified in the manner prescribed by the Code of Civil Procedure for verifying and signing plaints. 9. Section 13 of the said Act of 1920 specifies the particulars to be stated in the insolvency petition presented by a debtor or by a creditor or creditors. 10. In this case, the creditor presented the insolvency proceeding, which was registered as Insolvency Case No. 314 of 2005. 11. 9. Section 13 of the said Act of 1920 specifies the particulars to be stated in the insolvency petition presented by a debtor or by a creditor or creditors. 10. In this case, the creditor presented the insolvency proceeding, which was registered as Insolvency Case No. 314 of 2005. 11. The creditor in the said proceeding applied under Order 1, Rule 10 read with section 151 of the Code of Civil Procedure seeking addition of the wife of the debtor/defendant. He, inter alia, alleged that, during the pendency of the said proceeding, the debtor transferred his right, title and interest in the said flat in favour of his wife, namely, Shrimati Manju Parekh. Therefore, she was a necessary party in the said proceeding. 12. The learned Trial Judge accepted the prayer of the creditor/petitioner and directed addition of the wife of the debtor as the defendant No.2 in the said proceeding. 13. Being aggrieved by and dissatisfied with such order, the debtor/petitioner moved an application under Article 227 of the constitution of India, which was registered as Civil Order No. 3356 of 2009. 14. The Hon'ble Single Judge, by judgment and order dated March 24, 2010, rejected the said application under Article 227 of the Constitution of India as the debtor had an alternative remedy by way of an appeal under subsection (3) of section 75 of the said Act of 1920. 15. The debtor has, thus, come up with this appeal. 16. Mr. Shanti Sekhar Mukherjee, learned advocate for the appeal, however, expresses his doubt about the maintainability of the appeal. 17. Right to file an appeal is a vested right of a litigant. There must be a specific provision for filing an appeal under the statute. 18. Section 75 of the said Act of 1920 provides for appeals. Section 75 of the said Act of 1920 runs as under: - "75. 17. Right to file an appeal is a vested right of a litigant. There must be a specific provision for filing an appeal under the statute. 18. Section 75 of the said Act of 1920 provides for appeals. Section 75 of the said Act of 1920 runs as under: - "75. Appeals:-(l) 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 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 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." 19. Our reading of the provision of law is that under sub-section (2) of section 75 of the said Act of 1920, every order made by a District Court, otherwise than in appeal from an order of a subordinate Court, which is specified in Schedule I to the said Act of 1920, is appealable to the High Court. 20. Our reading of the provision of law is that under sub-section (2) of section 75 of the said Act of 1920, every order made by a District Court, otherwise than in appeal from an order of a subordinate Court, which is specified in Schedule I to the said Act of 1920, is appealable to the High Court. 20. However, under sub-section (3) of section 75 of the said Act of 1920, any other order than those specified in the aforementioned Schedule is, also, appealable only by leave of the District Court or of the High Court. 21. By the order impugned, an application filed under Order 1, Rule 10 read with section 151 of the Code of Civil Procedure, was allowed by the learned Trial Judge. This is not an appealable order under sub-section (2) of section 75 of the said Act o£1920, but is appealable only by the leave of the District Court or of the High Court 22. Therefore, we hold that this appeal is maintainable only by leave, as aforesaid. 23. Put up the application for stay, being C. A. N. 5603 of 2010, on June 22,2012, in the supplementary list.