DATTATRAYA CHANDRAYA BACHUWAR Vs. K L BAWACHEKAR

JUDGEMENT

(1.) THIS is a second appeal against the decision of the Assistant Judge of Sholapur confirming an order made by the First Class Subordinate Judge of Sholapur under Sections 53 and 54 of the Provincial Insolvency Act. The petitioner in the application, who was the receiver of the estate of certain insolvents, applied for setting aside a sale-deed passed by the| insolvents to the opponent, the present appellant, on December 15, 1930, alleging that the sale by the insolvents which had been made within two years of the insolvency was not bona fide and for valuable consideration, but was hollow and fraudulent, and intended to defraud other creditors. The trial Court came to the conclusion that the opponent was not a bona fide purchaser for value and that the sale was a fraudulent one and intended to give preference to the opponent and to defraud other creditors, and it therefore set aside the sale. THIS order was confirmed1 in appeal by the Assistant Judge, and the opponent has come in second appeal.

(2.) A preliminary objection has been raised by Mr. Coyajee for the respondent that no second appeal lies. The application to the Subordinate Judge was under Sections 53 and 54 of the Provincial Insolvency Act and the order made by the learned Subordinate Judge, which was confirmed by the Assistant Judge, was under those sections. Section 75 (1) of the Act provides that the debtor, any creditor, the receiver, or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court, may appeal to the District Court, and the order of the District Court upon such appeal shall be final. Under this section, therefore, the order made by the District Court in appeal is final and no second appeal would lie. The section provides, however, 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. The proviso, therefore, allows a revision application to the High Court against orders made by the District Court in appeal. The second proviso says that any such person aggrieved by a decision of the District Court on appeal from a decision of a subordinate Court under Section 4 may appeal to the High Court. It is contended for the appellant that all orders made under Sections 53 and 54 of the Act are also orders made under Section 4 and that a second appeal therefore lies in the case of such orders to the High Court from the decision of the District Court. Section 4 of the Act provides that subject to the provisions of the Act, the Court shall have power to decide all questions whether of title ox priority or of any nature whatsoever, and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognisance of the Court.

(3.) NO authority has been cited to us in support of the view that a second appeal lies against such orders. We have been referred to two cases, Sholapur Spinning Co. , Ld. v. Pandharimath (1928) 30 Bom. L. R. 893 and Balubihai v. Kalymji (1937) 40 Bom. L. R. 884, in both of which second appeals were admitted from orders made under Sections 53 and 54 of the Provincial Insolvency Act. In neither of these cases, however, was any question with regard to the admissibility of such appeals raised, and the attention of the Court was therefore not directed to the point now raised before us. In another case, Keshavlal Mohanlal Shah v. Ranchhodlal Maganlal Shah (1938) S. A. NO.765 of 1938, to which also our attention has been drawn, a revision application had been filed against an order made by a Subordinate Judge under Sections 53 and 54 of the Provincial Insolvency Act, and on a preliminary objection being raised that application was allowed to be treated as a second appeal, and was (Sic) judgment does not mention the grounds on which the [ (sic) allowed to be converted into a second appeal, and it (sic) the judgment that the question whether a second appeal]