OFFICIAL RECEIVER MUZAFFARNAGAR Vs. CHANDRA SHEKHAR

JUDGEMENT

(1.) THIS appeal arises out of an insolvency proceeding. Ghasita was adjudged insolvent on 24-2-1967 in Insolvency Case No. 78 of 1966. The Official Receiver filed a petition for annulment of three sale deeds executed by him on 24-5-1966. Two of the sale deeds were in favour of his two sons, Fazla and Qasim. The third sale deed was executed in favour of respondents Nos. 1 to 3. It was alleged that the sale deeds in favour of the sons were without consideration and fictitious and had been executed solely for the purpose of defrauding and defeating the creditors. With regard to the third sale deed. it was asserted that the vendees knew fully well of the indebtedness of Ghasita and had also knowledge that the property had been attached before judgment at the instance of Yasin, creditor, in suit No. 428 of 1966 of the Court of the Munsif, Muzaffarnagar, and that respondents Nos. 1 to 3 were not transferees in good faith and the sale deed was executed for inadequate consideration and to save the property from the creditors.

(2.) THE petition was contested by respondents Nos. 1 to 3 who pleaded that they were purchaser for value in good faith and that they had no knowledge of indebtedness of Ghasita or of the suit filed against him by Yasin.

(3.) LEARNED counsel for the respondents raised a preliminary objection that the present appeal was not competent since it had been filed without obtaining the leave of the Court as enjoined by sub-section (3) of Section 75 of the Provincial Insolvency Act. It was urged that the memorandum of appeal should have been accompanied by a petition for leave to appeal and leave must have been expressly sought as leave to appeal was a condition precedent for preferring an appeal under Section 75 (3). In the present case no separate petition for leave accompanied the memorandum of appeal and no leave in express terms was sought for or granted by the Court while admitting the appeal under Order 41, Rule 11, Civil P. C. The fact, however, remains trial the appeal was duly admitted and notice was directed to be issued to the respondents. The Act does not specifically prescribe that a petition for leave should accompany the memorandum of appeal. The fact that the High Court entertained the appeal implies that the necessary leave has been granted by the Court. I am in respectful agreement with the view expressed in Radha v. White, (AIR 1923 All 466) that leave to appeal may be granted even at the stage of final hearing if the Court is satisfied that the questions involved in the case required consideration. During the course of hearing the appellant moved an application for grant of requisite leave and I allow it. The preliminary objection must, therefore, fail.