D YELLAMANDA Vs. NAPPURAJU RAGHAVIAH

JUDGEMENT

(1.) This is an appeal from an order made by Stone, J. during vacation of 1932. The appellant here was the decree-holder in O.S. No. 653 of 1929 in the District Munsif's Court of Bapatla. In execution of that decree he brought the respondent's property to sale, the sale being fixed for the 13 June, 1932. Before the sale could take place, however, an application was presented to this High Court during the vacation to receive an insolvency petition against the judgment-debtor presented by the respondent and asking at the same time for a stay of the sale. An interim order was made by Stone, J. on the 11 June, 1932, as follows: Sale stayed. O.R. Guntur interim Receiver. Notice for 21-6-1932.

(2.) On 21 June, 1932, that order was made final, the papers being transmitted to the Sub-Court of Tenali for disposal after the re-opening of that Court. The application was presented in this High Court because at that time the Sub-Court of Tenali, which was the proper Court to deal with the matter, was closed for the summer recess and was not due to be reopened until the 27 June, 1932.

(3.) The question before us in this appeal is whether this High Court had jurisdiction to pass the order passed by our learned brother. That question depends upon whether the High Court has, during the vacation, any power to make any order with regard to any matter within the jurisdiction of a mufassal Court which is, at the time, closed for the summer recess which matter was not pending at the time of the closing of that Court. A similar position arose in Jumna Bai V/s. Ramanathan Chetti (1928) I.L.R. 52 Mad. 52 : 55 M.L.J. 690, a decision of Ramesam, J., with which I agree. He there held that, where a suit is pending in a mufassal Court which is closed for the summer recess, the High Court can transfer the case to itself under Clause 13 of the Letters Patent and pass interim orders in the case but that such an application for such transfer must be made on the Original Side of the High Court and that, with regard to cases or suits which are not pending in a mufassal Court, the High Court has no power to make any order with regard to them. In the course of his judgment our learned brother very carefully discusses the various clauses in the Letters Patent in order to sec whether any of them gives the jurisdiction to the High Court which was claimed by the petitioner in that case and is claimed by the respondent here and he also refers to Section 107 of the Government of India Act. There is one clause, however, in the Letters Patent to which he does not refer and that is Clause 18 which provides for the jurisdiction of the High Court in insolvency matters; and the respondent here claims that, by reason of that clause, the High Court has jurisdiction to pass such an order as was passed by Stone, J. in this case; and it is the latter part of that clause which is in particular relied upon. It is perhaps necessary to set out the whole of the clause which reads as follows: And We do further ordain that the Court for relief of insolvent debtors at Madras shall be held before one of the Judges of the said High Court of Judicature at Madras and the said High Court, and any such Judge thereof and it is the following part which is relied upon by the respondent: shall have and exercise within the Presidency of Madras such powers and authorities with respect to original and appellate jurisdiction and otherwise as are constituted by the laws relating to insolvent debtors in India.