Judgment

SIKRI, CJI. :- Civil Appeal No. 1021 of 1971, by special leave is directed against the judgment of the Bombay High Court, dated February 16, 1970, dismissing First Appeal No.152 of 1970 summarily. The judgment of the High Court reads:

"No appeal lies.

Even on merits we do not find any substance.

Dismissed"

2. This First Appeal was purported to be filed under sub-section (9) of Section 32 of the State Financial Corporation Act (63 of 1951) - hereinafter referred to as the Act - from the judgment and order dated January 16, 1970, passed by the Gopal U. Rijhsinghani; Joint Judge, Thana, in Miscellaneous Application No.111 of 1969. Two points arise in this appeal; (1) Whether an appeal lies to the High Court under Section 32 (9) of the Act? (2) if the appeal lay, was it a case for a summary dismissal?

3. In order to appreciate these points it is necessary to set out a few facts. One of the appellants, Asnew Drums Private Ltd., hereinafter referred to as the appellant company, made an application to the Bombay (now Maharahstra) State Financial Corporation for a loan of Rupees 10 lakhs for installing and erecting machinery plant and other fixtures for its drum reconditioning factory at Kalve, Thana District, Bombay. The appellant Company executed a registered deed of mortgage by way of security, pledging all lands buildings, machineries etc. On August 10, 1965, the Finance Corporation filed Miscellaneous Application No.75 of 1965 against the appellant company and two of its Directors under Section 31 of the Act for sale of company properties mortgaged and for issue of interim injunction restraining the company from dealing with these properties.

4. The relevant part of S.31 (1) of the Act provides:

"31 (1) Where an industrial concern, in breach of any agreemeent, makes any default in repayment of any loan or advance or any instalment thereof....then without prejudice to the provisions of S.29 of this Act and of Section 69 of the Transfer of Property Act, 1882, any officers of the Financial Corporation, generally or specially authorised by the Board in this behalf, may apply to the district judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs, namely:

(a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance; or

(b) .........

(c) for an ad interim injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board, where such removal is apprehended".

5. On August 18, 1965 the District Judge issued an interim injunction restraining the company from transferring or removing its machinery plant or equipment. On April 11, 1966, the District Judge confirmed the order of injunction and attachment and ordered the sale of attached machinery and plant of the company and passed an order for issue of sale proclamation as required under O. XXI R. 66, CPC.

6. Section 32 of the Act lays down the procedure to be adopted by the District Judge in respect of application under S. 31 (1) (a) and (c) of the Act. Sub-s. (6) of S. 32 provides that

"if cause is shown, the district judge shall proceed to investigate the claim of the Finance Corporation in accordance with the provisions contained in the Code of Civil Procedure, 1908, in so far as such provisions may be applied thereto".

It is under this sub-section that the District Judge investigated the claim although we were informed that no rules had been framed containing the provisions of the Code of Civil Procedure to be applied for this purpose. The relevant part of sub-section (7) provides that after making an investigation under sub-s. (6) the District Judge may confirm the order of attachment and direct the sale of the attached property. It is under this sub-section that t