OFFICIAL RECEIVER Vs. NSKUPPUSWAMI CHETTIAR

JUDGEMENT

(1.) The Official Receiver, Madura, filed a petition ostensibly under Secs.4 and 53, Provincial Insolvency Act, to set aside two mortgages by the insolvents in favour of the respondents to this appeal. The value of the property in question exceeded Rs. 10,000. There were two mortgages concerned, evidenced by Exs. I and II. Ex. I was of the value of Rs. 12,000 and Ex. II of the value of Rs. 1,000. The Subordinate Judge of Dindigul set aside the alienation under Ex. II on the ground that it was a sham transaction but refused to set aside Ex. I holding that it was genuine. A Civil Miscellaneous Appeal No. 54 of 1935 was filed Under Section 75, Provincial Insolvency Act, before the District Judge of Madura against the order of the Subordinate Judge in respect of Ex. I, the Rs. 12,000 mortgage. The learned Judge allowed the appeal holding that the mortgage was without consideration and not in good faith. The respondents here filed a petition before the District Judge seeking leave to appeal to the Privy Council, which was resisted by the Official Receiver on the ground that no appeal lay. It is necessary to point out that an application such as was heard by the lower Courts Under Section 53 is not" within the provisions of Section 4, Provincial Insolvency Act. This is relevant when considering the provisions of Section 75, Provincial Insolvency Act (see Alagiri Subba Naick V/s. Official Receiver, Tinnevelly AIR 1931 Mad 745). Section 75 is as follows: (1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court, may appeal to the District Court, and the order of the District Court upon such appeal shall be final; Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it thinks fit; Provided, further, that any such person aggrieved by a decision of the District Court on appeal from a decision of a subordinate Court Under Section 4 may appeal to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100, Civil P.C., 1908. (2) Any such person aggrieved by any such decision or order of a District Court as is specified in Schedule 1 come to or made otherwise than in appeal from an order made by a Subordinate Court, may appeal to the High Court.

(2.) It will be seen that in an appeal from the Subordinate Judge to the District Court the order of the District Court shall be final . There are however two Provisos. The first Proviso gives a wide revisional jurisdiction to the High Court much wider in its terms than Section 115, Civil P.C., and the second Proviso gives a right of second appeal to the High Court from the District Judge. This however as has already been pointed out is not a case within Section 4 and therefore under the Act the only remedy open to the respondents was by way of revision. The position in the moffussil relating to insolvency applications is peculiar. They are not always heard at first instance by the Subordinate Judge but sometimes by the District Judge. In the ease before us there being no District Judge at Dindigul, there was no option except for this case to go before the Subordinate Judge for trial. The result of this is that if the case is heard by the Subordinate Judge at first instance, an appeal lies to the District Judge, but if the case is heard by the District Judge at first instance, the appeal lies to the High Court in which latter case, provided the amount in dispute is more than Rs. 10,000 and other necessary conditions are fulfilled, an appeal would lie to the Privy Council; Maung Ba Thaw V/s. Ma Pin is an authority in point as to the right of appeal to the Privy Council. As the matter before us is not within Section 4, Provincial Insolvency Act, a second appeal does not lie to the High Court and therefore a party losing in appeal before the District Judge would appear to be confined to his remedy by way of revision whatever be the amount at stake. The appellant's contention is that Section 109, Civil P.C., is the dominant provision of law on which this matter should be decided. Section 109 reads as follows: Subject to such rules as may, from time to time, be made by His Majesty in Council regarding appeals from the Courts of British India, and to the provisions hereinafter contained, an appeal shall lie to His Majesty in Council: (a) from any decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction; (b) from any decree or final order passed by a High Court in the exercise of Original Civil Jurisdiction; and (c) from any decree or order, when the case as hereinafter provided is certified to be a fit one for appeal to His Majesty in Council.

(3.) The important words are contained in (a). What is meant by any other Court of final appellate jurisdiction ? The appellant argues that the District Court is not a Court of final appellate jurisdiction because revision lies to the High Court generally Under Section 115, Civil P.C., and specially in this case under the first Proviso to Section 75, Provincial Insolvency Act, and had this been a case within Section 4, Provincial Insolvency Act, then a second appeal would have been competent to the High Court. Mr. Sitarama Rao for the appellant contends that once the decision of the District Judge is given in appeal, the facts can never be re- opened. He concedes--as he is bound to concede--that the powers of the High Court in revision are discretionary and although the High Court under the Proviso to Section 75, Provincial Insolvency Act, has wider powers than Under Section 115, Civil P.C., it is equally conceded that those powers extend no further than those given by the corresponding provisions in the Provincial Small Cause Courts Act, 9 of 1887. It is now a well-established practice not to interfere even under the last mentioned Act on questions of fact unless there has been a patent miscarriage of justice. Therefore the only appeal to the Privy Council open to a litigant whose case is at first instance tried by a Subordinate Judge would be against the misuse of the revisional discretion of the High Court or by special leave Under Section 109, Civil P.C. The argument of the respondents is that whatever may be the trend of authority with regard to the meaning of the words any other Court of final appellate jurisdiction in other connections, the sense of Section 75, Provincial Insolvency Act, and Section 109, Civil P.C., is that for the purpose of applications in matters such as those before us, the District Court is a Court of final appellate jurisdiction.