NARAYANA PANICKER Vs. KUNJU PENNU

JUDGEMENT

(1.) These are appeals from Sub Courts orders in insolvency proceedings. Are these appeals to be tiled here or in the concerted District Court is the question for consideration.

(2.) Under S.3 of the Insolvency Act, 1956 District Courts are the Courts vested with insolvency jurisdiction. The proviso to that section enables the Government to invest any Court subordinate to a District Court with such jurisdiction by issuing a gazette notification. It is by virtue of power conferred by such notification that the Sub Courts passed the orders under appeal Any Court on whom insolvency jurisdiction is competently conferred by a notification issued under the proviso to S.3 of the Act, is, for the purpose of exercising jurisdiction under the Act, a Court subordinate to a District Court. If so, under S.79(1), appeals from orders passed by a Sub Court lie to the District Court to which that Sub Court is subordinate in matters of insolvency jurisdiction, and not to this Court. The District Court, to which a Court (on whom insolvency jurisdiction is competently conferred by Government), would be subordinate, is that District Court, which, but for a gazette notification under the proviso, would have dealt with the insolvency case in question.

(3.) The above view is supported by the decisions in Chatturbhuj Mahesri v. H. Agarwalla ( AIR 1925 Cal. 335 ), in Madhorao Deorao v. Nago ( AIR 1923 Nag. 80 ), and in In the matter of Kuppuswami Vanniar ( AIR 1955 Mad. 554 ). The Calcutta Case concerned an order passed by the Deputy Commissioner of Darjeeling who had been invested with Subordinate Judge's powers, and on that basis, with insolvency jurisdiction by a government notification, and the other two cases, orders passed by Subordinate Judges. The same principle has been laid down even in respect of orders passed by Assistant District Judges and Additional District Judges who were invested with insolvency jurisdiction by notification issued under the Proviso to S.3 of the Act. See Ah Fwaik v. Receiver, Bailiff, District Court (AIR 1934 Rang. 155), Bhagwanji v. Premji (AIR 1959 Bom. 47), Moolmal v. Lal Singh (AIR 1939 Sind. 221) and Chiragh Din v. Fateh Mohammad and others ( AIR 1933 Lah. 307 ). The Allahabad High Court also has taken the same view in Gokul Chand v. Babu Ram (AIR 1952 All. 423) in respect of an order in an insolvency case passed by a Civil Judge who was invested with insolvency jurisdiction by a Government notification, though with respect to orders passed by Additional District Judges, a different note appears to have been struck by that Court in two earlier cases, Makhaw Lal v. Sri Lal (ILR 34 All. 382) and Emperor v. Chiranji Lal (ILR 36 All. 576). These decisions have been commented upon by Subhahmany Sastri in his Commentaries on Provincial Insolvency Act, 3rd Edition, revised by Madhavan Nair, who later was a Judge of this Court. At Page 501 of the said Commentaries it is pointed out as follows: