DONEPUDI SUBRAMANYAM Vs. NUNE NARASIMHAM

JUDGEMENT

(1.) This Letters Patent Appeal is against the judgment of Phillips, J., in Second Appeal dismissing the plaintiff's suit.

(2.) The 1 defendant held a decree against defendants 2 to 4. In execution of that decree he applied for attachment of certain properties. The attachment was ordered on 22nd June, 1915 and was effected on 25 June, 1915. Between these dates on 24 June, 1915 an insolvency petition was presented by defendants 2 and 3. An adjudication followed on 16 December, 1915. Plaintiff, alleging a sale of these properties to him by defendants 2 to 4 on 11 March, 1915, had filed a. claim petition against the attachment on 28 July, 1915. That was allowed on 8 November, 1915. On 31 March, 1916 1 defendant sued to set aside the order on the claim petition making the plaintiff and the insolvents parties but not joining the Official Receiver. His suit failed in the Trial Court, but he succeeded in the District Court on appeal, and a Second Appeal to the High Court was dismissed. The plaintiff then in 1920 brought the present suit to declare the decree of the District Court void because incompetent. His grounds are two : first, that the valuation of the 1 defendant's suit was beyond the jurisdiction of the District Court in appeal, and secondly, that the 1 defendant's suit was within the mischief of Section 16 (2) (b) of the Provincial Insolvency Act (III of 1907) which was then in force and that since leave of the Insolvency Court had not been obtained neither the District Munsif's Court nor the District Court had jurisdiction to entertain the suit. Plaintiff lost in the Original Court, won in the Appellate Court, lost again before Phillips, J., and now appeals.

(3.) The first ground of attack on 1 defendant's suit seems to me without substance. No doubt in that suit the value of the decree which 1 defendant was seeking to execute against the property declared to be the plaintiff's was over Rs. 5,000, but the value of the property itself was said to be Rs. 4,000. The valuation of the appeal was clearly the value not of the decree but of the property sought to be recovered to satisfy the debt. The District Court therefore had jurisdiction. In any case it is clearly a matter which cannot now be urged in a collateral proceeding. No objection was taken before the District Court at the time of hearing of the appeal. Therefore under Section 1,1 of the Suits Valuation Act, the objection could not be taken in appeal from the District Court. A fortiori, it cannot be taken in a collateral proceeding.