M W ELLIOT, OFFICIAL RECEIVER Vs. KOPPARAPU SUBBIAH

JUDGEMENT

(1.) When this appeal first came on we adjourned it to see if the appellant, the Official Receiver of Cuddappah, had obtained leave of the District Court to appeal, or, if not, to enable him to apply to it for the leave. This is required as the matter falls under Section 75(3) of the Provincial Insolvency Act and the appeal is not as of right. The District Judge has now on application made to him held that the appellant should have applied for leave prior to filing the appeal in the High Court. The words of the sub-section are may appeal to the High Court by leave of the District Court or of the High Court, and the question is do they enact that leave is a condition precedent to sue. It is contended that it must be so, otherwise the provisions as to limitations for filing the appeal would be unmeaning. There is no doubt that this appeal was filed within 90 days but the objection is that it was not really an appeal when it was filed, as it was not accompanied by a leave to appeal or a petition asking for the same. It seems to me that it is a mistake on the part of the officer who admits these appeals not to examine them to see if leave has either been obtained or there is at least a petition for it. The words of Walsh, J., in Balli V/s. Nand Lal (1916) 33 I C 773 at 775 may be quoted in this connection. The question may have to be raised hereafter as to whether in view of the provisions as to limitation, an appellant under Section 75(3) must first be granted leave or must obtain leave before he appeals, but for our present purpose it is enough to say that the question seems not to have been so far raised and such authority as there is seems in favour of granting leave with retrospective effect. In Ananthanarayana Aiyar V/s. Sankaranarayana Aiyar (1923) ILR 47 M 673, Spencer and Devadoss, JJ., held that an application for leave may be filed after the period of limitation had elapsed and that an appeal could not be held to be out of time for that reason. If it were, it could be excused under Section 78. In C.M.A. No. 314 of 1924, Ramesam and Madhavan Nair, JJ., permitted an appeal to be amended so as to make it one filed under Section 75(3); they then gave leave to appeal. That appeal was originally filed as of right under Section 75(2). We had ourselves previously adjourned the case to allow petitioner to obtain leave to appeal from the District Court. This was clearly a recognition of the retrospective effect of the Court's leave. In Balli V/s. Nand Lal (1916) IC 773 (Allahbad High Court), there was no leave and the Court allowed the case to be argued as the practice of the Court was not thoroughly settled. The same remark seems to apply here and it would be a good thing to settle the practice. The Allahabad Court therefore looked into the appeal and found there were no grounds to support it. Walsh, J., said he, could regard it as a sufficient ground to refuse leave if he found that such an appeal had been admitted as a matter of course when there is only an appeal by leave. Piggott, J., pointed out that there had been cases in that Court where leave to appeal had been granted after hearing the arguments but that such proceeding should not form the general practice. It was, however, nowhere assumed that leave was a condition precedent to the right of appeal. We have also been referred to a somewhat similar case under the Pensions Act. Mahomed Azmat Ali Khan V/s. Lalli Begaum (1882) 9 IA 8 : LR 8 C 422 (P.C.) where the words are No Civil Court shall entertain any suit except as hereinafter provided. and a Civil Court shall take cognisance of any such claim upon receiving a certificate from the Collector.

(2.) Their Lordships held that the Court might proceed with the suit after receipt of the certificate, for the suit had been begun without it. It therefore seems to me that, as the authorities go at present, the District Judge was wrong and we have power to grant the leave now for which a petition has been put in; and we have heard sufficient of the case to lead us to think that it is a case in which leave ought to be granted. The merits will therefore be argued. Curgenven, J.

(3.) I agree.