Chag Mull and anr. Vs. Jai NaraIn and anr. - Court Judgment

Stephen, J.

1. This is an appeal from an order of the Deputy Commissioner of Darjeeling dated the 10th of March 1910, made under Section b7 of the Provincial Insolvency Act, 1907, setting aside a transfer of his house and shop made by the second respdonent Nazir Khan to the appellants Chag Mull and Suraj Mull.

2. The facts of the case, so far as we need consider them, are as follows: On the 17th November 1908 the respondent transferred the premises in question to the appellants in order to avoid execution proceedings in a suit brought by then. Six or ten days later, it does not matter which, the respondent filed his petition in Insolvency. This he did under the Insolvency Section of the Civil Procedure Code of 1882, as Darjeeling is a Scheduled District under the Insolvency Act, which was not then in force there. The present Civil Procedure Code was applied to Darjeeling on the 5fch January 1909, and the Provincial Insolvency Act on the 25th January 1909. The respondent was adjudged an insolvent on the 27th May 1909 by the District Judge who appointed a Receiver, and transferred the case to the Deputy Commissioner on the 12th June 1909. On the 9th July the first respondent filed a petition to the Receiver to have the transfer in question set aside, and it was set aside, as we have said, on the 10th March 1910.

3. A preliminary objection is taken to this appeal on two grounds:

(1) that no appeal lies in this case;

(2) that the proper parties are not before the Court because the Receiver is not joined.

4. The first of these grounds must prevail for the following reasons. The Insolvency proceedings were, no doubt, commenced under Chapter XX of the Civil Procedure Code, 1882. The whole of this Code was repealed, as far as Darjeeling was concerned on the 5th January 1909 when the present Civil Procedure Code came into force. Thereupon, under Section 6 of the General Clauses Act, if any person had acquired or incurred any right, privilege, obligation or liability on the filing of the second respondent's petition, legal proceedings in respect thereof might have been continued as if neither the Civil Procedure Code, nor the Insolvency Act, which also repeals Chapter XX of old Code, had been passed. Without inquiring whether any such right had been acquired and so forth, it is enough to say that this was not done, as the District Judge certainly acted under the Insolvency Act when he adjudged the second respondent an insolvent on the 27th May and no appeal has been lodged against this order. If this is so, there can be no doubt that the appeal in this case lies to the District Court and not to us by force of Section 45 of the Insolvency Act; as the case was tried by the Deputy Commissioner, a3 being a Court, subordinate to the District Judge, invented with jurisdiction under Section 3. The Deputy Commissioner had under Section 3 concurrent jurisdiction with the District Court, but if the same meaning is applied to the expression Subordinate Court in Sections 3 and 4*5 that will not prevent an appeal lying from one Court to another; especially as no Court subordinate to the District Court has any jurisdiction except under the provisions of Section 3. We hold, therefore, that no appeal his in this case, and it becomes unnecessary for us to consider further questions that have been raised in this case.

5. We make no order as to costs.

D. Chatterjee, J.

6. A good deal of learned discussion has been made in this case as to whether the provisions of the new Act have any and what application: but it is not necessary to go into that discussion for deciding the preliminary objection. For, if the old law applied, the order of the Deputy Commissioner was appealable to the District Judge under Sections 583 and 589 of the old Code. See Sitharama v. Vytilinga 12 M. 472; Debi Prasad v. Jamna Das 23 A. 56; P.S.; Sami Aiyar v. Ayilam Gramon Vythi Pottar 19 M.L.J. 68 : 4 M.L.T. 455 : 4 Ind. Cas. 617; and if the new Act applied, an appeal lay to the same Court under Section 46 of the new Act.

7. This appeal is, therefore, incompetent in either case and it is not necessary to go into any other question. The appeal most be dismissed.