ANNAMALAI CHETTY Vs. OFFICIAL ASSIGNEE OF MADRAS

JUDGEMENT

(1.) This is an application by the Official Assignee of Rangoon for leave to appeal to His Majesty in Council against the order in C.M.P. No. 3032 of 1922 passed by Scbwabe, C.J., and myself. The order was passed under Section 8 of the Presidency Towns Insolvency Act of 1909 annulling a prior order of Wallis, C.J. and Seshagiri Iyer, J.

(2.) The 1 and 2nd respondents now contend that there is no appeal to His Maiesty in Council against the order under Section 8 of Act III of 1909. Up to 1909 the Insolvency Jurisdiction in Presidency Towns was granted by 11 and 12 Viet., C. 21. In 1848 there were no High Courts in India and the Supreme Court had no Insolvency Jurisdiction and the Act of 1848 constituted an Insolvency Court. Even after the issue of Letters Patent in 1862 it was generally supposed that the Insolvency Court was, strictly, a Court separate from the High Court. Having regard to Clause 18 of the Letters Patent, it is doubtful how far such a view was correct. Clause 18 of the Letters Patent shows that the Insolvency Jurisdiction was part of the Civil Jurisdiction of the High Court and there was an Original and Appellate Jurisdiction in Insolvency matters also.

(3.) All these doubts were certainly resolved after the Act of 1909. Section 3 makes the High Court the only Court competent to exercise Insolvency Jurisdiction." That being so, in an Insolvency matter (Original or Appellate) an application for leave to appeal lies under Clause 39 of the Letters Patent even if no such application lies under Section 109 of Civil Procedure Code. The Advocate- General contends that the Civil Procedure Code itself applies. He points out that Section 120(2) of the Civil Procedure Code was repealed by Act III of 1909 with the result that all the portions of the Code applying to the Original Side of the High Court (see Section 117) also apply to Insolvency matters, this result being consistent with Section 90(1) of the Insolvency Act of 1909. Still it maybe doubted whether the provisions of Civil Procedure Code so made applicable to the Original Side of the High Court ( Section 117) including the Insolvency Jurisdiction, Section 90(1) include the chapter relating to appeals to His Majesty in Council or should be confined to these relating to the procedure to be followed in the High Court. If the Civil Procedure Code, Section 109, does not apply, Clause 39 of the Letters Patent certainly applies. The decision in Rangoon Botatoung Company Ltd. V/s. The Collector, Rangoon (1912) 40 Cal. 21 has nothing to do with this matter. The Judicial Committee held that no appeal lay in Land Acquisition Proceedings for they were in the nature of arbitration proceedings (vide The Secretary of State v. Chellikani Rama Rao A.I.R. 1916 P.C. 21 and the award passed thereon is not of the nature of a judgment, decree or order within the meaning of Clause 39 of the Letters Patent (see The Special ! Officer, Salsette Building Sites V/s. Dasabhai Bezanji Motiwala (1913) 17 C.W.N. 421.