CHATTURBHUJ MAHESRI Vs. HARLAL AGARWALLA

JUDGEMENT

(1.) This is an appeal in an insolvency matter, the appellant being one of the creditors of the insolvent. The appeal is against the judgment of the Deputy Commissioner of Darjeeling who had powers under the Provincial Insolvency Act, 1920, by virtue of the notification of the Local Government investing him with such powers.

(2.) A preliminary objection has been taken to the competency of the appeal on the ground that the appeal under the law lay not to this Court but to the District Judge of Dinajpur and Jalpaiguri inasmuch as the Deputy Commissioner of Darjeeling has been invested with the powers of a Subordinate Judge and also the special jurisdiction conferred upon him tinder Section 3 of the Provincial Insolvency Act, 1920, and is thus a Court subordinate to that of the District Judge. The memorandum of appeal in this case purports to have been filed under Section 75, Sub-section (2), of the Provincial In-solvency Act. That section provides that an appeal from an order made in the exorcise of insolvency jurisdiction by a Court subordinate to the District Court shall lie to that Court. The District Court has been defined as the principal Civil Court of original jurisdiction in the district. Apparently the Deputy Commissioner's Court is subordinate to the District Court and an appeal from a decision of the former Court would, therefore, lie to the latter Court. Clause (2) of Section 75, therefore, does not empower the appellant to appeal to this Court from the order of the Deputy Commissioner inasmuch as that section merely provides for an appeal from the District Court to the High Court. It is not contended before us that the Deputy Commissioner's Court is the District Court within the meaning of the Provincial Insolvency Act, but it is argued that there is no notification under Section 3 of the Provincial Insolvency Act, 1920, investing the Deputy Commissioner of Darjeeling with jurisdiction under the Act and, therefore, an appeal lies to this Court from the order passed by the Deputy Commissioner, It is difficult to see how this argument supports the appellant's case. Be that as it may, the contention has no substance. The notification issued by the Local Government investing the Deputy Commissioner of Darjeeling with powers under the Provincial Insolvency Act was issued under Section 3 of the Repealed Act III of 1907. Section 3 of Act III of 1907 has been re-enacted word for word in the new Act V of 1920 and, therefore, under Section 24 of the General Clauses Act, 1897, the notification made under the repealed Act would remain in force. It is clear that an appeal in this case lay to the District Judge of Dinajpur and Jalpaiguri. Reference may be made in this connection to the case of Chhugmul V/s. Jai Narain (1912) 15 C.L.J. 239 where a point very similar to the present was raised and it was decided that though a portion of the case was transferred to the Deputy Commissioner of Darjeeling by the District Court, namely, the District Judge, an appeal from the order passed by the Deputy Commissioner lay to the District Court and not to the High Court.

(3.) The learned Counsel for the appellant next prays that the memorandum of appeal may be returned to him for presentation to the proper Court, and he has relied upon the decision in the cases of Dehi Prasad V/s. Jamna Das (1900) 23 All. 56 and Maneksha V/s. Dadabhai (1903) 27 Bom. 604. We do not think that we should accede to this request. There is no excuse for the appeal having been preferred to this Court. It can hardly be said that the mistake was a bona fide one and that the appellant was misled by an ambiguity in the law which is quite clear on the point. It is not necessary to consider the question whether this Court has power under the Provincial Insolvency Act, 1920 to return the memorandum of appeal for presentation to the proper Court. In the case of Chhuqmul V/s. Jai Narain (1912) 15 C.L.J. 239, the appeal was dismissed. I think that we should follow the same course and dismiss the appeal leaving it open to the appellant to take such steps as he may be advised in the Court below.