GHANCHI AMATHALAL MAGANLAL Vs. MEHTA POPATLAL MANGALJI

JUDGEMENT

(1.) This is second appeal directed against the order of the District Judge of Banaskantha at Palanpur in Miscellaneous Civil Appeal No. 4 of 1967 confirming the decision of the Court of the Civil Judge (Senior Division) Palanpur in Miscellaneous Petition No. 3 of 1961 holding that the present three appellants who were the applicants before the learned Civil Judge and who had made an application for order of discharge under sec. 41 of the Provincial Insolvency Act 1920 (Act No. 5 of 1920) which will hereafter be referred to as the Act were not entitled to have an absolute discharge nor any other kind of discharge and thus dismissing the application for an order of discharge. The appellants have been adjudged insolvents in Insolvency Petition No. 3 of 1967 which was a debtors application made on 29th December 1960 under sec. 10 of the Act by adjudication order passed by the learned Civil Judge (Senior Division) Palanpur on November 27 1963 In the said order the Court had directed the insolvents to apply for a final discharge within six months from the date of the said order. The appellants application for discharge has been dismissed in the aforesaid terms by .he learned Civil Judge (Senior Division) Palanpur on the ground that the assets of the insolvents were not of a value equal to 8 annas in a rupee of their unsecured liabilities that the insolvents had omitted to keep of accounts as are usual and proper in the business carried Oil by them and that the insolvents have concealed a part of their property and thus have been guilty of fraud the grounds which are covered under clauses (a) (b) and (i) of sub-sec. (1) of sec 42 of the Act. The order refusing an absolute order of discharge passed by the Civil Judge has been maintained by the learned District Judge in appeal. It is against this order of the District Judge that the present second appeal is directed.

(2.) The first question that falls for my consideration in this appeal is as to whether a second appeal lies under the Act. Part VI of the Act which contains sec. 75 makes provision for the appeals. Sub-sec. (1) of sec.

(3.) The next question that then falls for my consideration is what is the extent of the revisional power of the Court in such a revision application. For the purpose one has to refer to the first proviso of subsec. (1) of sec. 75 of the Act which provides 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. Thus a Court exercising revisional powers has to examine the decision under revision as a whole and to find out whether the decision is according to law. In such a case the High Court must refer to the overall decision which must be according to law which it would not be if there is miscarriage of justice due to a mistake of law. The revisional powers under sub-sec. (1) of sec. 75 and first proviso of the Act are not the powers exercisable under sec. 115 of the Code of Civil Procedure. But there are wider powers under the first proviso where the language used is according to law. A similar provision is to be found in sec. 25 of the Provincial Small Cause Courts Act which had been a subject of interpretation by Chief Justice Beaumont in Bell & Co. Ltd. v. Waman Hemraj 40 Bom. L.R. 125 where the learned Chief Justice has observed: