R KANAKASABAPATHI CHETTIAR Vs. GOMATHI MEENAKSHI AMMAL

JUDGEMENT

(1.) THESE are two alternative attempts by one o? the creditors in I.P. No. 53 of 1929 on the file of the Subordinate Judge's Court of Madura to get rid of the order of the Subordinate Judge dismissing his application under Section 4, Provincial Insolvency Act, for a declaration that certain properties claimed by respondent 1, the insolvent's wife, are really the properties of the insolvent. The properties are worth over Rs. 12,000 and though they admittedly belonged to the insolvent at one time, they were sold by the Official Receiver and purchased by certain persons who in their turn subsequently sold them to respondent 1 who happens to be the wife of the insolvent. One of the creditors who is the appellant in this second appeal and the petitioner in the revision petition alleged that the wife was only a name-lender; and that the properties really belonged to the insolvent as they were purchased with his own money which he had secreted with his wife. The learned Subordinate Judge was of opinion that in a case of this kind it was a matter within his discretion whether to exercise jurisdiction under Section 4, Provincial Insolvency Act; or to refer the petitioner to a separate suit, and he exercised the discretion by declining jurisdiction under Section 4 and referring the party to a separate suit. The petitioning creditor first of all filed an appeal, from this order to the District Court of Madura. Before that appeal was even actually admitted, he filed the revision petition in this Court. Later on he filed the second appeal from the order of the District Court of Madura dismissing his appeal to that Court.

(2.) IT has been contended that no second appeal lies. But it is unnecessary to decide this question because both the second appeal and the revision petition raise the same question which has to be decided at least in the revision petition. I shall therefore refrain from deciding the academic point whether the second appeal lies. The question for determination therefore is reduced to this, namely whether the learned Subordinate Judge exercised his discretion improperly or unreasonably in declining jurisdiction under Section 4, Provincial Insolvency Act. His order shows that he has directed himself as regards the law on the point quite correctly, and I have not been convinced that he has made any mistake or error in applying that law to the facts of this case. I may add that the District Judge was also of opinion that the discretion had been rightly exercised by the lower Court. The case is eminently one in which it is not desirable that the insolvency Court should have exercised its jurisdiction under Section 4. The dispute was of a difficult character and involved a very large sum of money. The result of assuming jurisdiction would have been to deprive the unsuccessful party of a right of first appeal to the High Court and perhaps an appeal to the Privy Council. In any case, the principles which ought to govern the exercise of discretion in cases of this kind clearly show that in a case of the present nature the better course would be to refuse to exercise jurisdiction. The learned Subordinate Judge has therefore acted rightly and exercised his discretion properly in this case. There is therefore no substance either in this appeal or in the revision petition and both are dismissed with costs in the civil miscellaneous second appeal only.