BALLI Vs. NAND LAL

JUDGEMENT

(1.) THIS is an appeal by a creditor in an insolvency matter. It appears that one Raghunath was declared insolvent by an order of the 16th of November 1912. The appellant Balli was one of his creditors. On a subsequent date, which was apparently sometime in the year 1915, Balli presented a petition to the District Judge in charge of the insolvent s estate, to the effect that Raghu Nath was carrying on a business at a certain shop, the stock-in-trade of which included a considerable quantity of gold and silver ornaments. He asked that this stock-in- trade might be seized for the benefit of the creditors. There was no Receiver appointed, so that the property of the insolvent had vested in the District Judge, and the latter proceeded through an officer of the Court to seize the stock indicated in Balli s petition. Thereupon one Nand Lal filed an objection, to the effect that the stock belonged to him and that Raghu Nath was carrying on the business of the shop as his salaried agent. The District Judge has held a regular enquiry into this matter. He has examined Nand Lal and the insolvent, as well as seven witnesses produced on Nand Lal s behalf. He has also examined the creditor Balli and two witnesses produced by the latter. The conclusion he arrived at was in favour of the objector Nand Lal. He holds that the stock-in-trade which he had seized was in fact Nand Lal s property and that Raghu Nath had no connection with it, except that he was selling the same as agent for Nand Lal. He has accordingly released the property and restored it to Nand Lal s possession. THIS petition of appeal was tiled as an appeal from order lying as of right. There is no suggestion in the memorandum of appeal that leave of the Court is required; nor was any petition for leave presented along with the memorandum of appeal. THIS was no doubt done under a misapprehension, for it has in fact been contended before us that the District Judge s order is one against which an appeal lies as of right under the second Clause of Section 46 of the Provincial Insolvency Act (III of 1907). A reference was made in argument to the provisions of Section 16 of the same Act. We are satisfied that the order in question cannot be referred to Section 16 of Act III of 1907. It is an Order passed by the District Judge in the exercise of the jurisdiction vested in him to Section 22 read with Section 23 of the Act, and an appeal would lie only by leave of the District Court or of the High Court under Sub- section (3) of Section 46 aforesaid. There have been cases in which an appeal like the present has been permitted to be argued, even though it was not presented along with an application for leave to appeal, and leave to appeal has been granted after hearing arguments; but we do not think that this is a practice which this Court ought to allow to become general. "Where an order is appealable only by leave of the District Court or of this Court, the memorandum of appeal should always be accompanied by a petition for leave to appeal, and it should be made clear to the Judge sitting to receive petitions that the appeal is not presented as one which lies as of right. In the present case, as it seems to us, that the practice of the Court on this point is not thoroughly settled, we have allowed the case to be argued to this extent that we have examined the evidence in order to see whether the record discloses any special reasons why leave to appeal should be granted by this Court. We do not think there are any such reasons. There was no immoveable property involved. The parties were at issue upon a plain question of fact depending mainly, if not entirely, upon the credibility of the oral evidence offered on both sides. If it had been an ordinary suit, tiled in the Court of a Munsif or a Subordinate Judge, the finding of the District Judge, arrived at a first appeal without the advantage of himself seeing or examining the witnesses, would have been final on any question of fact in issue between the parties. Here the District Judge had the witnesses before him. They were examined and cross-examined at length and he formed an opinion favourable to the credibility of the witnesses produced by the objector Nand Lal. We are content to say that this is not in our opinion a case in which leave to appeal should be granted. Had the memorandum of appeal been presented accompanied by such a petition, it would probably never have been admitted or set down for hearing at all. As we are not prepared to grant leave to appeal, the only order we can pass is that the appeal does not lie as of right and we hereby dismiss it with costs. Walsh, J.

(2.) I want to add one word. I attach very great importance to the conduct of matters by way of petition before a single Judge. Where Counsel are applying ex parte for admission they ought to conduct themselves as if the matter were uberrima fidei, that is to say, where they have informed themselves or ought to have informed themselves that the matter for which admission is sought is a matter which, requires leave of the Court in order to give a right of appeal at all, the Court which is asked to admit the appeal should be so informed. It is obvious there are many reasons why that ought to be done. There is one reason above all, otherwise the time of the Judge and, what is more important, the time of the Bar when petitions are being heard is unnecessarily occupied by the Judge going out of his own way to ascertain for himself whether the matter is appealable or not. When Counsel are preparing memorandum of appeal they must at least satisfy themselves whether there is an absolute right of appeal or a right of appeal by leave only, and in the latter event it is obvious that they ought to ask for leave and draw the attention of the Court when applying for admission that it is a matter in which leave is required as a condition precedent. Speaking for - myself if I ever find that an appeal has been admitted as a matter of course when it is an appeal which lies only by leave of the lower Court or of this Court, I shall consider it to be a sufficient ground for refusing leave. In making these general observations I am not referring in any way to the appellant s Counsel in this case, inasmuch as he was not present when his appeal was presented for admission by the Judge hearing petitioners. I would further add that as a general rule where a right of appeal to the High Court is given by leave of the District Judge or of the High Court, the application for leave ought in the first instance to be made to the Court which dealt with the matter. Speaking for myself, if an application for leave is made before me, I would not grant it unless it was made in the first instance to the Court below.