S KASI CHETTIAR Vs. RTHON BLE THE SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF RAMNAD

JUDGEMENT

(1.) Ramaswami Chettiar applied to the Subordinate Judge, Devakottai, on the 2nd November, 1931, to be declared an insolvent (I. P. No. 33 of 1931). He was adjudicated on the 7 July, 1932. While this application was pending a property of his was sold for arrears of income-tax and purchased by the second defendant on the 25 April, 1932. The sale was confirmed on the 4 June, of that year. The Official Receiver of the Ramnad District brought a suit in the Court of the Subordinate Judge, Devakottai for the cancellation of the sale (O.S. No. 27 of 1933) on the 6 February, 1933. The suit was dismissed and the decree passed by him was confirmed on appeal by the District Judge of Ramnad on the 13th February, 1937. The Official Receiver refused to prefer an appeal against that decree. One of the creditors, who is the present appellant in this Court, applied to this Court for leave to present an appeal. This was granted on the 25 October, 1937, but without issuing a notice to the opposite party.

(2.) A preliminary objection has been taken on behalf of the second defendant as well as on. behalf of the Secretary of State that the appellant, not having been a party to the litigation, was not competent to prefer this appeal. The question to decide is if he was entitled so to do. Learned Counsel for the appellant urged in the first instance that the Official Receiver represented him and other creditors of Ramaswami Chettiar in O.S. No. 27 of 1933 and on the Official Receiver's failure to prefer an appeal, his client, who was one of the creditors, was competent to do so. The second contention advanced by him was that even if Section 75 of the Provincial Insolvency Act has no application, his client should be held entitled to prefer an appeal on the analogy of that section. The third contention was that the relationship between his client and other creditors on the one side and the Official Receiver on the other was that of a cestui que trust and a trustee and in so far as the latter's failure to prefer an appeal against the decree would affect him and other creditors of Ramaswamy adversely he or they should be held competent to bring the litigation, which was carried up to a certain stage by the Official Receiver, to the highest Court of the Presidency and to get a final adjudication in regard to that matter from that Court.

(3.) A right of appeal is not a mere matter of procedure. It is a substantive right and is primarily a creature of statute. As such, it can be exercised only by those in whom the power rests either expressly or by necessary implication.