BANAKAR BASAPPA Vs. HANSJI GULABCHAND FIRM

JUDGEMENT

(1.) The appellants in the Civil Miscellaneous Appeal who are the petitioners in the Civil Revision Petition attack an order refusing to set aside another order adjudicating the 1st appellant as an insolvent) the 2nd appellant being one of the alienees in whose favour the alienations challenged in the insolvency are made. The adjudication was made by the learned District Judge in appeal reversing an order of the Subordinate Judge who dismissed the petition.

(2.) It is argued that no appeal lies from an order under Order IX, Rule 13, Civil Procedure Code, read with Section 75 of the Provincial Insolvency Act, on the ground that the order now "under appeal is really itself an appellate order of the District Judge. It seems 1o me that this contention is not tenable. Sub-section 3 of Section 75 of the Provincial Insolvency Act reads: Any such person aggrieved by any other order made by a District Court otherwise than in appeal from an order made by a Subordinate Court may appeal to the High Court by leave of the District Court or of the High Court.

(3.) It may possibly have been the intention underlying this provision that it should apply only to orders of the District Court in the exercise of its original jurisdiction, but that is not what the section says. 1 do not think it can be contended that the order refusing to set aside an ex parte order in appeal is itself an order in appeal though it might be contended that it is an order passed in the exercise of the appellate jurisdiction of the District Court. I have been referred to two decisions Venkaia Narasimha Rao V/s. Hemadu Suryanarayana 23 LW 409 : 92 Ind. Cas. 802 : 50 MLJ 75 : AIR 1926 Mad 325 and Salar Beg Saheb V/s. Karumanchi Kottaya to the effect that a proceeding under Order IX, Rule 13, is not a proceeding in the suit but quite independent of the suit, the suit itself having been disposed of. On the analogy of these rulings it must be held that a proceeding under Order IX, Rule 13 to set aside an ex parte decree in appeal is not a proceeding in the appeal, the appeal itself having terminated. I, therefore, hold that an appeal does lie.