VENILAL CHHAGANLAL Vs. VIRCHAND KHUMCHAND SHAH

JUDGEMENT

(1.) This is an appeal against the decision of the District Judge of Surat sitting in insolvency jurisdiction confirming the order of the Subordinate Judge of Surat appointing a temporary receiver in the case of the present appellant against whom the petition in insolvency has been presented.

(2.) A preliminary objection is taken by the learned advocate for the respondents that no appeal will lie under Section 75 of the Provincial Insolvency Act inasmuch as the order of the District Court is not an order under Section 4 of the Act. The section of the Act says:- Subject to the provisions of this Act, the Court shall have full power to decide all questions whether of title or 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, or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case.

(3.) It is contended that Section 4 only applies to cases of question of title or priority and it cannot include all questions arising such as the present one, and in support of this proposition reference is made to the cases of Sambamurthi Ayyar V/s. Ramakrishna Ayyar (1928) I.L.R. 52 Mad. 337 and of Kalu Ram V/s. Gitwar Singh (1930) A.I.R. Lab. 592. The case of Sambamurthi Ayyar V/s. Ramakrishna Ayyar expressly proceeds on Section 75, paragraph 2, and does not altogether apply to the facts before us. So also the case of Kalu Ram V/s. Gitwar Singh is a case on Section 58, but assuming, in view of the wide terms of Section 4 which gives the Court full power to decide all questions of any nature whatsoever, a second appeal to lie in a matter of this sort, a point we do not think it necessary to decide, it is quite clear that under the Provincial Insolvency Act a second appeal will not lie in this case and for this reason. Section 75 of the Provincial Insolvency Act, after directing in the first paragraph that the order of the District Court, upon such appeal, shall be final, provides 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, and, further, 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 on any of the grounds mentioned in Sub-section (1) of Section 100 of the Civil Procedure Code of 1908.