A L A ALAGAPPA CHETTIAR Vs. CHOCKALINGAM CHETTY

JUDGEMENT

(1.) Section 47(1) of the Provincial Insolvency Act provides that, subject to the provisions of the Act, the Provincial Insolvency Court in regard to proceedings under the Act shall have the same powers and follow the same procedure as it has and follows in the exercise of Original Civil jurisdiction, thus making the provisions of the Civil Procedure Code clearly applicable as far as may be to original proceedings under the Act. This Sub-section applies to District Courts in the exercise of original jurisdiction in insolvency. Sub-section (2) then applies exactly the same provisions in the same language to the High Courts and District Courts " in regard to proceedings under this Act in Courts subordinate to them " and the first question is, what is the effect of these words. Though not very happily expressed they are in my opinion wide enough to cover cases in the Subordinate Courts which come before the High Court or District Court on appeal or revision as well as on applications for transfer, etc., and there are sufficient indications that they were used by the legislature in this sense. The procedure prescribed in the Civil Procedure Code is the standard procedure, and no reason has been suggested why it should have been made applicable in insolvency cases only in original court and not also to cases of appeal and revision provided for in the Act. There must be some procedure or other governing such proceedings, and if it had been intended that it should be prescribed by rules made under Section 51, it would have been specifically mentioned in Sub-section 2 among the other important matters as to which rules were to be made under that section. So far as appeals to the High Court are concerned, the sub-section so construed may in my opinion be regarded as superfluous, because, under Section 590 of the Code of 1882, now Section 108, the procedure prescribed in Chapter XLI, which deals with appeals from original decrees Was made applicable as far as might be to appeals from orders under any special or local law in which a different procedure is not provided. No different procedure is provided in the Provincial Insolvency Act as it was in the Insolvent Act II and 12 Viet. Ch. 21 to which for that reason the provisions of Section 590 were held inapplicable in In the matter of R. Brown (1886) I.L.R. 12 Cal. 629.

(2.) Clearly, therefore, in either view the procedure prescribed by the Code is appliacable to appeals to the High Court under the Provincial Insolvency Act, and it is unnecessary to refer to Section 117 and Sections 3 and 4 of the Code which were also relied on.

(3.) The next question depends on the construction of Order XLI, Rule 22 (formerly Section 561) C.P.C. which has given rise to much difference of opinion. In Calcutta it was held that Section 531 did not generally entitle one respondent in an appeal to present a memorandum of objection against another respondent, and this was followed in Banke Lal v. Jagat Narain (1900) 71. L R 23 All 93. On the other hand it was held by this Court to be permissible in Timmayya v. Lakshmana (1883) I.L.R. 7 Mad. 215 approved in Kulaikada Pillai v. Visvanatha Pillai (1904) I.L.R. 28 Mad. 229. In these circumstances the section was amended in 1908 by substituting in Sub-section (1) " cross objection" for " objection " and in Sub-section (3) " the party who may be affected by such objection " for " appellant ", while the new Sub-section (4) speaks of " such notice to the other parties as the Court thinks fit." The interpretation put upon these amendments has not been uniform. A Full Bench of this Court in Munisami Mudaly v. Abbu Reddy (1913) I.L.R. 38 Mad. 705 has relied mainly on the previous practice of this Court, but that consideration has less weight in a case like this where the legislature in making the amendments must be presumed to have intended to introduce uniformity of practice in place of the diversity prevailing in the different High Courts. While the Bombay High Court adheres to the view that cross-objections must be aimed at the appellant in Nursey Virji v. Alfred H. Harrison (1913) I.L.R, 37 Bom 511 it has been held in Jadunandan Prosad Singh v. Koer Kallyan Singh (1911) 15 Cal. L.J. 61 : 16 C.W.N. 612 that Rule 22(3) introduces a modification of the old rule in Section 561; that the effect of the alteration is to leave no doubt that a respondent may prefer a cross-objection against a correspondent, but to at the limits of the rule are not attempted to be defined. The Allahabad Court takes a similar view, Balgobinda v. Ram, Sarup (1914) I.L.R. 36 All. 505.