K LAKSHMAPPA Vs. TALASANI VENKATA REDDI

JUDGEMENT

(1.) These two connected appeals arise out of applications presented to the Court of the District Judge, Anantapur, exercising jurisdiction in insolvency for scaling down the debt due to the appellant in each case in accordance with the provisions of the Madras Agriculturists Belief Act. The appellant in CM.A. No. 606, held a promissory note executed by the insolvent debtor, the respondent in these appeals, and the appellant in C.M.A. No. 607, had obtained a decree against him. Both the creditors had proved their debts but the respondent objected to their payment in full by the Official Receiver on the ground that the debts should be scaled down under the Madras Agriculturists Relief Act. The Official Receiver overruled the objection and paid the full amount of the principal with interest at six per cent, per annum as provided in Section 48 (2) of the Provincial Insolvency Act. Thereupon the respondent filed I.A. Nos. 21 and 31 of 1939 in the Court below praying that the debts should be scaled down and that the sums paid by the Official Receiver in excess of the amounts due as scaled down, should be recovered from the appellants. While these applications were pending, the respondent also applied to the Court for annulment of his adjudication on the ground that all his creditors had been paid in. full, and the adjudication was annulled on the 31 July, 1940. The petitions referred to above were heard on the 6 September, 1940 on the preliminary objection raised by the appellants that the Insolvency Court had no jurisdiction to scale down the debts under Madras Act IV of 1938, and the learned Judge pronounced what is styled an order holding that the Court had jurisdiction to entertain the applications and posting them for trial on the merits to 23 September, 1940. The appellants have brought these appeals with the leave of this Court challenging the correctness of this decision.

(2.) Mr. V.S. Narasimhachar, the learned Counsel for the respondent, has raised a preliminary objection to the maintainability of these appeals on the ground that the so-called order of the lower Court is nothing more than a finding on one of the points arising for determination in the petitions filed by the respondent which still await disposal, and that no appeal lies under Section 75 of the Provincial Insolvency Act against a mere finding where it does not lead to or involve a disposal of the matter in which it is made. Sub-section (3) of that section under which these appeals have been filed provides that a person aggrieved by any order other than those specified in Schedule I made by a District Court otherwise than in appeal from an order made by "a Subordinate Court may appeal to the High Court by leave of the District Court or of the High Court, It is argued for the appellants that the Court below having formally expressed its decision upon one of the points for determination in the applications and issued also a decretal order, there is here an order made by a District Court otherwise than in appeal, and that the appeals are therefore competent under the provision referred to above. Our attention was also called to the definition of Order in Section 2, CL (14) of the Civil Procedure Code as "the formal expression of any decision of a Civil Court which is not a decree"; and stress was laid on the fact that, while the Code prohibits appeals from orders save as otherwise expressly provided therein (S. 104), Sec. 75, Sub-section (3) provides for a right of appeal from any original order of a District Court other than those specified in Schedule I. It was therefore urged that no limitation ought to be placed upon appeals from such orders by reading into the provision any restrictive or qualifying words from considerations of expediency.

(3.) While we are sensible of the difficulty of stating in sufficiently clear-cut and definite terms what is and what is not an order for the purposes of Section 75 of the Provincial Insolvency Act, we are convinced that the recording of a mere finding, albeit in a formal manner, that the Court has jurisdiction to entertain an application cannot be deemed to be an order within the meaning of that section. A decision upon jurisdiction has only the effect of regulating procedure and where it is not sufficient to dispose of the application hardly stands on a different footing from a raling as to the admissibility of a document tendered or the relevancy of a question put and objected to in the course of the trial. Such decisions as to details of procedure and admissibility of evidence may, no doubt, be regarded as orders in a sense but it could not, we apprehend, have been intended that such decisions should by themselves be open to appeal apart from the final decision disposing of the application or matter. The consequence of holding that such decisions are appealable might well be to make them conclusive unless they are displaced in appeals preferred against them by the party who is adversely affected and, as pointed by their Lordships of the Privy Council in Maharajah Moheshar Sing V/s. The Bengal Government (1859) 7 M.I.A. 283 at 302, nothing would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing (i.e. from every interlocutory order); whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities. A somewhat close analogy is to be found in the decision of this Court in Zamindar of Bodinaichanur V/s. Kamarajapandia Naicker where it was held that findings on objections raised by a judgment-debtor in an execution application on the ground of lack of jurisdiction and limitation could not be made the subject of appeal when such findings did not result in the dismissal of the application but led to its adjournment for further hearing. It will be noticed that Section 2 (2) of the Civil P. C. makes the determination of any question within Section 47 a decree , and Section 96 provides that an appeal shall lie from every decree passed by any Court, exercising original jurisdiction save where otherwise expressly provided. Notwithstanding this wide language used, this Court (Beasley, C.J., and Bardswell J.), held that no appeal lay observing: No final order has been passed in execution by the learned Subordinate Judge. He has merely dealt with the two legal Objections which were raised in the course of the execution proceedings. By his order he has not stopped execution proceedings from going on. What he has done quite obviously is to make an order that they are to go on to a final determination. In my view, the learned Subordinate Judge has made no order as yet which can be the subject of an appeal. The position here is similar.