KANDASWAMI GOUNDAN Vs. RANGASWAMI GOUNDAN

JUDGEMENT

(1.) The appellant is a creditor who upon the refusal of the Official Receiver to take steps to set aside a sale Under Section 53, Provincial Insolvency Act, obtained leave of the Court Under Section 54. A to file a petition for that purpose. The petition was dismissed, the District Judge holding that the appellant bad not sue. Deeded in proving that the sale which he impeached was not a transfer in good faith and for valuable consideration. The appellant in pursuance of Section 75(3) obtained leave of the High Court to appeal against the decision of the District Judge, A preliminary objection has been raised by Mr. Venkatachariar, who appears for the alienees, the respondents to this appeal, that [the appeal will not lie. His contention is that the appellant is not competent to appeal as a person aggrieved unless he had limit applied to the Official Receiver to appeal and the Official Receiver had refused. The learned advocate seeks to draw analogy from Section 54. A in support of his proposition. I think that the appellants right of appeal depends entirely upon the terms of Section 75. Sub-section (1) enumerates the persons to whom a right of appeal is given; they are, "the debtor, any creditor, the receiver or any other person aggrieved by a decision." Under Sub-section 1, it is the decision of an Insolvency Court subordinate to the District Court which Is appealable, and an appeal is given from the decision of the Subordinate Court to the District Court. Sub-section 2 provides for an appeal by "any such person aggrieved" which means any of the parsons named sub a 1-by a decision of a District Court on the matter specified in Schedule I of the Act. And Sub-section 3 gives a right of appeal by leave of the High Court to "any such person aggrieved" by an order of the District Court made otherwise than in appeal from a Subordinate Court.

(2.) There is no doubt that a creditor is among the persons who may be aggrieved by an order of an Insolvency Court whether it be a subordinate Court, or a District Court to whom a right of appeal is given by Section 75. Mr. Venkatachari has relied upon a decision of Addison J. reported in Puran Chand v Ramchand Gupta (1931) 18 A.I.R. 651 In that case an objection was taken at the hearing of the appeal that an appeal would not lie because the leave of the Court had not bean obtained Under Section 75 (3). All that the learned Judge decided was that it was not a fit case to give leave to appeal, because the appellant had not requested the Official Receiver to appeal and the Official Receiver had refused. The learned Judge referring to Section 54.A - although it does not appear from the report that the creditor had originally taken stops to sat aside the sale Under that section said : It follows that leave to appeal should also not be given to a creditor unless either the District Judge or thin Court is satisfied that the Receiver had been requested and has refused to appeal.

(3.) He does not lay down that the High Court can only give leave to a creditor to appeal upon these conditions. In my judgment the language of Section 75 gives no warrant for attaching any such condition to the power vested in the High Court by Sub-section 3. The preliminary objection therefore fails. I now come to the merits of the appeal. The appellant filed a suit on a promissory note against the debtor on 22 December, 1925 on that same day the debtor executed a registered sale deed, Ex. 1, to respondent 2, his cousin, of land for a sum of Rs. 1500. The appellant obtained a decree in his suit on 15 February 1926 He petitioned to have the debtor adjudicated on 22 March, 1926, the alleged act of insolvency being the transfer made by Ex. 1. The debtor was adjudicated on 9 August 1926. The appellant is the sole creditor. On 1 November 1928, respondent 2 executed Ex. 2, a sale dead of the same property, to respondent 3, a brother of the debtor, for Rs. 1500, and one of the attestors of that: sale deed is the debtor. Now undoubtedly the appellant had to establish that these were not bona fide transactions. Ha had to produce evidence either in chief or by means of cross- examination of the respondents witnesses, to show that the circumstances of these sales were such that the reasonable inference was that they were simply a device to screen the property from the creditor. It is not enough, as the learned District Judge seems to have done, to pick out a few circumstances and to find explanations for them, and then to deduce there from that the appellant has not discharged his burden of proof. The Judicial Committee has pointed out that it is essentially necessary that the facts should be considered in relation to each other and weighed as a whole: Seth Ghunsham Das V/s. Uma Pershad (1919) 6 A.I.R. P.C. 6.