SRAMANNA Vs. ABBAS HUSSAIN

JUDGEMENT

(1.) This second appeal arises out of an order in an insolvency case. The appellant who holds a decree in O.S. No. 22/37-38 on the file of the Subordinate Judge, Shimoga, against the respondent for Rs. 2855-7-0 made an application on 17-8-43 for declaring the respondent an insolvent. The respondent raised several objections which were negatived and the Subordinate Judge directed that he should be adjudicated. On appeal the District Judge of Shimoga reversed that order and dismissed the appellant's application on the ground that the respondent was able to pay his debts and he has come up in second appeal.

(2.) For the respondent, Mr. M. Ramachandra Rao, his learned counsel, has raised a preliminary objection to the hearing of this second appeal. He urges that under Section 75(1) of the Mysore Insolvency Act XI of 1925 which governs this case, only certain orders passed under the Act are subject to second appeal and that the present order, which falls under Section 25 of the Act, is not liable to be appealed against to the High Court. In support of that position he has relied on -' Wan Taik Ya v. M.S.S. Chettyar Firm', AIR 193S Rang 26 (A); -- 'Alagirisubba Naik v. Official Receiver, Tinnevelly', AIR 1931 Mad 745 (B) and -- 'Ghulam Rasul v. Kidar Nath', AIR 1934 Lah 807 (1) (C). The language of Section 75(1) and those cases clearly support the objection he has taken and a second appeal, therefore, does not lie in this case.

(3.) But Mr. Somasekhara Rau, learned counsel for the appellant, contends that nevertheless this Court may under Section 75(3) examine the order of the District Judge and determine about its legality and correctness, and that the present case is one in which such powers of revision ought to be exercised in favour of his client. He points out that this course has been adopted in -- 'AIR 1036 Rang 26 (A)'. In view of the past history of this case, and its facts and circumstances and the clearly incorrect way in which the matter has been decided by the learned District Judge, I am inclined to adopt that procedure.