SURJIT SINGH Vs. AMIN CHAND KHANNA AND OTHERS

JUDGEMENT

(1.) ON 24th of December, 1962. Jat Mal and his son Tek Chand executed a registered mortgage deed, regarding their residential house situate in village Jandiala Guru, district Amritsar, in favour of Surjit Singh for Rs. 14640/ -. On 25th of April, 1963, both the mortgagors were declared insolvents. On 8th of November, 1963, the official receiver filed an application under sections 53 and 54 of the Provincial Insolvency Act, 1920 (hereinafter called the Act) for the annulment of the mortgage. Both the Insolvency Judge and the learned Additional District Judge, Amritsar, on appeal, have annulled the said mortgage, holding that it was without consideration and not executed bona fide. It was a fraudulent transfer and the same had been made to give preference to Surjit Singh and his brother Sardul Singh. Against the order of the Additional District Judge, the present appeal has been filed by Surjit Singh under section 75 of the Act.

(2.) A preliminary objection has been raised by the Learned Counsel for the respondents that BO second appeal, under section 75 of the Act, was competent against the order passed by the lower appellate court confirming the order of the Insolvency Judge made under sections 53 and 54 of the Act, annulling a sale or a mortgage and the same was liable to be dismissed on that ground alone. Reference in this connection was made to the provisions of section /5 of the Act and a number of judicial decisions, as for example Ramchandra v. Ramchandra : A.I.R. 1931. Nag 153, P. Alagirisubba Niak v. Official Receiver of Tinnevelley, A.I.R. 1931. Mad. 745, Chet Ram Ramrachh Pal v. Atma Ram, A I.R. 1933 Lah. 631:, 34 P.L.R. 950, John A. David v. A.L.A. Alagappa Chettiar, A.I.R. 1986 Mad 432, Jiwan Ram v. Official Receiver, A.I.R.1940 Lah. 708 :, 37 P.L.R. 224, and Dattatraya Chandraya Bachuwar v. K.L. Bawachekar : A.I.R. 1940 Bom.51.

(3.) THE powers of this Court in revisions in such cases are given in the first proviso to section 75(1) of the Act. It lays down -