CHIRANJI LAL Vs. EMPEROR

JUDGEMENT

(1.) Chiranji Lal applied to be declared an insolvent. The case came before the Second Additional Judge of Aligarh, and he, in exercise of the jurisdiction conferred upon the Court by Section 43 of the Provincial Insolvency Act of 1907, ordered the debtor to be imprisoned for a term of two months for having fraudulently or vexatiously concealed books of account. The debtor, Chiranji Lal, appealed to this Court against the order of the Second Additional Judge.

(2.) A preliminary objection was taken against the hearing of the appeal to the effect that an appeal did not lie to the High Court, but lay to the District Court. Section 8 of the Bengal, N.W.P. and Assam Civil Courts Act (XII of 1887) provides for the appointment by Government of Additional Judges. Clause (2) of the same section provides that the Additional Judges so appointed shall discharge any of the functions of the District Judge which the District Judge may assign to them, and in discharge of those functions shall exercise the same powers as a District Judge. There is no doubt that the Second Additional Judge was duly appointed under Section 8 and there can be no doubt that the District Judge assigned to the Second Additional Judge the disposal of this particular insolvency application. It seems to me that there can be also no doubt that under Clause (2) of Section 8 the District Judge had authority to assign the petition in question to the Second Additional Judge, Section 20 provides: "Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional Judge shall lie to the High Court." In my opinion these provisions make it quite clear that the appeal in the present case lay to the High Court.

(3.) The Additional Judge dealt with the matter as a District Judge. It was contended by the objector that under the provisions of Section 46 of the Provincial Insolvency Act of 1907 an appeal from; an order of a Court subordinate to the District Judge lies to the District Judge and it is argued that the Second Additional Judge was a Court subordinate to the District Court within the meaning of Section 46. Clause (1). In support of this contention Section 39 of the Bengal, N.W.P. and Assam Civil Courts" Act is cited. This section provides as-follows: "For the purposes of the last-foregoing section the presiding officer of a Court subject to the administrative control of the District Judge shall be deemed to be immediately subordinate to the Court of the District Judge, and, for the purposes of the Code of Civil Procedure, the Court of such an officer shall be deemed to be of a grade inferior to that of the Court of the District Judge. It seems-to me that this is a clause providing that for the specified purposes mentioned in-section 39, and for this purpose only, a Court is to be deemed subordinate or of a lower grade to the Court of the District Judge. It cannot override the other clears provisions to which I have referred. A Bench of this Court has already considered this question in the case of Makhan Lal v. Sri Lal 14 Ind. Cas. 162 : 9 A.L.J. 371 : 34 A. 382. The view taken by the learned Judges in that case was that the appeal from an order of the Additional Judge lay to the High Court and not to-the District Judge. I entirely agree with-the view taken by the learned Judges in that case and I would overrule the preliminary objection. George Knox, J.