ABDUL MUWALI Vs. TAHSILDAR OF KASHIPUR

JUDGEMENT

(1.) A preliminary objection has been taken to the hearing of this appeal on the ground that no appeal lies to this Court from the order of Mr.G.L. Vivian, the Deputy Commissioner of Kumaun,"dated 26 July 1928, passed in insolvency proceedings.

(2.) One Mubarak Husain was adjudged insolvent on 8 December 1925 on application presented by his creditor Sukhdeo on 28 March 1924 and the 13th May 1925. He had executed a mortgage deed, dated 30 December 1922 in favour of Abdul Muwali, the appellant. The Tahsildar of Kashipur who was appointed receiver made an application for annulment of the mortgage aforesaid on 10 January 1928. The Deputy Commissioner, Naini Tal, who exercised the powers of a civil Court under the Insolvency Act, annulled the mortgage impugned by the receiver, under Section 53, Insolvency Act. The present appeal was filed by the mortgagee Abdul Muwali impugning the correctness of the order of the Deputy Commissioner referred to.

(3.) It has been argued for the respondent that the forum of appeal from the order of the Deputy Commissioner exercising jurisdiction of a civil Court under the Provincial Insolvency Act is the Court of the Commissioner, Kumaun Division, and not this Court. The contention is based on Rs. 11, 12 and 24 of the Kumaun rules which, it is alleged, are applicable to the present ease. Assuming for the present, that the rules are applicable we have no hesitation in holding that the appeal lay to the Commissioner, Kumaun Division, and not to this Court.R. 11 provides that: the Commissioner shall exercise the powers and perform the duties of a High Court for the Kumaun Division for the purposes of all Acts other than the Succession Act, 1865, the Companies Act, 1882 and the Railways Act, 1890.