S. SURYANARAYANA AND ORS. Vs. N. ADINARAYANA

JUDGEMENT

(1.) SOME of the alienee -creditors in an insolvency proceeding are the Petitioners in this civil revision whereas; opp. party No. 1 is another creditor in the same proceeding. The insolvency proceeding was initiated in the Court of the District Judge (vide 1. P. No. 1 of 1952). That proceeding was transferred to the Court of the Subordinate Judge, Rayagada where it was renumbered as I. P. No. 1 of 1971. When the case was pending in the Court of the District Judge, Jeypore, the present Petitioners filed applications in that case for being included in the roll of creditors in the estate of the insolvents on the ground that they were bona fide purchasers for value of some of the properties of the insolvent. That matter came up before this Court subsequently. In this Court there was a compromise whereunder it was agreed that the Petitioners should be included in the roll of creditors in the insolvents estate subject to proof in accordance with law of the debts to satisfy which the transfers in their favour had been made by the insolvent. In pursuance to that compromise the matter was again taken up by the learned District Judge in I. P. No. 1 of 1952 which was still on his file. The learned District Judge by his order dated 11 -1 -1965 directed that the Petitioners should be included in the roll of creditors subject to certain conditions specified therein. Against that order the Petitioners again came to this Court (vide M. A. Nos. 80 to 84 of 1965). This Court in those, mise appeals varied the order of the learned District Judge. Thereafter, I. P. No. 1 of 1952 was transferred to the Court of the Subordinate Judge, Rayagada. The learned Subordinate Judge held an enquiry into the Petitioners of the Petitioners praying to be included in the roll of creditors to the estate of the insolvent and allowed them by order dated 4 -4 -1977. Being aggrieved by that order the opposite party preferred Civil Misc. Appeal No. 4 of 1977 in the Court of the District Judge, Jeypore. The learned District Judge by his order dated 9 -4 -1977 reversed the order of the, learned Subordinate Judge. Hence the present civil revision by the Petitioners who being some of the alience -creditors from the insolvent wanted to be included in the roll of creditors in the estate of the insolvent in the insolvency proceeding pending in the Court of the Subordinate Judge, Rayagada after being transferred by the District Judge, Jeypore.

(2.) MR . Y. S. N. Murty, learned Counsel for the Petitioners, raises only one point in support of the revision petition. According to him, the insolvency proceeding 10 question was originally initiated in the Court of the District Judge, Jeypore who passed several orders therein including the order dated 11 -1 -1965 against which the Petitioners had preferred appeals to this Court (vide M. A. Nos. 60 to 84 of 1965). After disposal of those misc. appeals the case again went back to the Court of the District Judge, Jeypore. Sometime thereafter, as the Court of the Subordinate Judge at Rayagada was created and was invested with powers to dispose of proceedings under the Provincial Insolvency Act, the learned District Judge transferred the original insolvency case, i. e., 1. P. No. 1 of 1952, out of which the present revision arises, to the Court of the Subordinate Judge, Rayagada where the case was re -numbered as 1. P. No. 1 of 1971 In spite of this transfer and In spite of re -numbering, the case remained the same as well as the parties. The transferor Court, viz., the Court of the District Judge, did not cease to have jurisdiction to dispose of the case. By transfer the transferee Court, viz., the Court of the Subordinate Judge, Rayagada, assumed jurisdiction to dispose of the case. Therefore, according to Mr. Murty, the transferor Court as well as the transferee Court had concurrent jurisdiction to dispose of the main insolvency case, and as a matter of fact, the transferror Court was in seisin of the case before it was transferred and passed the order dated 11 -1 -1965 against which the Petitioners had come to this Court in M. A. Nos. 80 to 84 of 1965. When the case went back to the transferor Court after disposal of the misc. appeals the transferor Court, instead of disposing of the case as directed by this Court, transferred the same to the transferee Court. The order dated 9 -4 -1977 passed by the learned Subordinate Judge is nothing but a continuation of the order dated 11 -1 -1965 passed by the learned District Judge relating to the same matter in controversy between the parties. In these circumstances, the learned District Judge cannot sit in appeal against the order dated 9 -4 -1977 of the Subordinate Judge, Rayagada. So it is urged that the appeal (vide Civil Misc. Appeal No. 4 of 19777 against the order dated 9 -4 -1977 of the Subordinate Judge, Rayagada in the Court of the District Judge was not maintainable at all and the impugned order of the learned District Judge is liable to be set aside being non est in the eye of law having been passed without jurisdiction. Mr, Murty in support of his contention relies upon two decision, Debya v. Phutumani, A.I.R. 1933 Part 276 (2) and Jadubala Dasi v. Upendra Nath Saha, A.I.R. 1948 Cal. 255, the provisions contained in Sections 23 and 24 of the Bengal, Agra and Assam Civil Court Act, 1887 and Sections 3 and 75 of the Provincial Insolvency Act, 1920. The contention raised by Mr. Murty requires careful scrutiny.

(3.) The aforesaid provision clearly goes to show that proceedings under the Indian Succession Act, 1865 and the Probate and Administration Act, 1881 which are originally cognizable by a District Judge can be transferred by a District Judge to a Subordinate Judge as per the general or special order of the High Court. The provision does not authorise the District Judge to transfer any other proceeding under any other enactment which is exclusively cognizable by him to the Court of the Subordinate Judge under Section 23 of the Act. Section 24 lays down that proceedings taken cognizance of by, or transferred to: a Subordinate Judge or Munsif, as the case may be under the last foregoing section shall be disposed or by him subject to the rules applicable to like proceedings when disposed of by the District Judge: provided that an appeal from an order of a Munsif in any such proceeding shall lies to the District Judge. Sub -section (2) of Section 24 of that Act further provides that an appeal from the order of the Distract Judge on the appeal from the order of the Munsif under this section shall lie to the High Court if a further appeal from the order of the District Judge is allowed by the law for the time being in force. Section 24 therefore makes it clear that where a proceeding under the Indian Succession Act, 1865 or under the Probate and Administration Act, 1881 has been transferred by a District Judge to a Subordinate Judge under a general or special order of the High Court, the Subordinate Judge shall dispose of the case so transferred to him subject to the rules applicable to like proceedings when disposed of by the District Judge. It is this provision which has been interpreted in the two decisions relied upon by Mr. Murty. The point decided in the decision reported in Debya v. Phutumani1, was as follows: The Appellant before their Lordships was an applicant before the District Judge for probate of a will. The learned District Judge coming to the conclusion that the matter was contentious transferred it to the Subordinate Judge presumably under the powers granted by Section 23 of the Act 12 of 1887 (Bengal Agra and Assam Civil Courts Act). The learned Subordinate Judge disposed of the matter in favour of the Appellant. An appeal was preferred by the Respondent to the District Judge. It was contended by the Appellant before their Lordships that the District Judge had no jurisdiction to hear the appeal. It was held in that case that Clause (d), Sub -section (2), Section 33 of the Bengal, Agra and Assam Civil Courts Act contemplated one class of proceedings which might be transferred under the main part of the section. In other words, it was held that proceedings under the Succession Act, 1865 and the Probate and Administration Act, 1881 could be transferred by the District Judge under the authority of the High Court given under Sub -section (1) of Section 23 to the Court of a Subordinate Judge. It was further held in that case that under Section 299 of the Succession Act (39 of 1925) every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal by the High Court. Section 24 of the Bengal, Agra and Assam Civil Courts Act which lays down that proceedings taken cognizance of by a Subordinate Judge under Section 23 shall be disposed of by him subject to the rules applicable to like proceedings when disposed of by the District Judge was interpreted in that decision to mean that the final order passed by the Subordinate Judge was subject to appeal as provided under Section 299 of the Succession Act (39 of 1925). In the view, their Lordships said that an appeal lay to the High Court against the final order of the Subordinate Judge in a proceeding transferred to him under Section 24 of the Bengal, Agra and Assam Civil Courts Act and the Probate and Administration Act, 1881. For this position reliance was placed by their Lordships on another decision in Sohna v. Khalak Singh, I.L.R. 13 All 78. The following passage from that decision was quoted by their Lordships with approval: