Judgement

Appeal (No. 114 of 1932) from a decree of the High Court (January 18, 1932) reversing an order of the District Court of Henzada (March 30, 1931).

In an insolvency under the Provincial Insolvency Act, 1920, the respondent applied to the District Court to be placed on the schedule of creditors directed to be framed by s. 33. The District Court rejected the application on the ground that the alleged indebtedness was not proved. On an appeal to

Law. Rep. 61 Ind. App. 158 ( 1933- 1934)

Maung Ba Thaw V. Ma Pin 2

the High Court under s. 75, sub-s. 2, of the Act, that Court directed that the respondents name should be included in the schedule as a creditor for Rs. 18,691, a. 9.

The appellant, the receiver in the insolvency, appealed to the Privy Council, having obtained a certificate from the High Court that the case was a fit one for appeal under the Code of Civil Procedure.

1933. Nov. 13. Parikh for the respondent. This appeal is not competent. The Provincial Insolvency Act, 1920, provides by s. 4, sub-s. 2,that the decision of the District Judge is to be final "notwithstanding anything contained in any other law for the time being in force." The effect is to exclude the provisions of the Code of Civil Procedure and the letters patent with regard to appeals to the Privy Council. The words in the sub-section " subject to the provisions of this Act " and the provision by s. 75 that in a limited class of case there shall be a right to appeal to the High Court, do not take away the effect of the words above quoted. Chatrapat Singh Dugar v. Kharag Singh Lachmiram (( 1913) I. L. R. 40 C. 685.) was decided under the Act of 1907, which contained no provision in the terms of s. 4, sub-s. 2, of the Act of 1920. [Reference was made also to Rangoon Botaoung Co. v. The Collector, Rangoon (( 1912) L. R. 39 I. A. 97.), and Secretary of State for India

v. Hindusthan Co-operative Insurance Society. (( 1931) L. R. 58 I. A. 259.)]

Dunne K.C. and Pennell for the appellant. There is a right of appeal under the Code of Civil Procedure and under the Letters Patent. Sect. 4, sub-s. 2, has not the effect of taking away that right in cases in which by s. 75, sub-s. 2, there is a right to appeal to the High Court. The right of appeal to the High Court, not being merely consultative, the ordinary rules as to appeals to His Majesty in Council apply Secretary of State for India v. Chelikani Rama Rao. (( 1916) L. R. 43 I. A. 192.)

Their Lordships dismissed the preliminary objection and proceeded on November 14 and December 12 with the hearing of the appeal upon the facts.

1934. Jan. 15. The judgment of their Lordships was delivered by

LORD THANKERTON. The appellant is receiver of the estate of Po Thit and Ma Nyein E, his wife, who were adjudicated insolvents on January 11, 1929, and he appeals from a decree of the High Court of Judicature at Rangoon, dated January 18, 1932, which reversed the order of the District Court of Henzada, dated March 30, 1931, and directed that the respondent be added in the schedule of creditors of the estate in respect of certain sums, amounting in all to Rs. 18,691-9-0, claimed in respect of eight promissory notes. The respondent had also claimed in respect of a mortgage debt of Rs.4000, but it is now admitted that it had been satisfied.

Prior to the application by the respondent to be added in the schedule of creditors, which was filed on January 30, 1931, and out of which the present appeal arises, the appellant had made an application under s. 54 of the Provincial Insolvency Act, dated April 6, 1929, against the present respondent, asking that the payment by the insolvents bo her of a sum of Rs. 19,000 within three months of the petition for adjudication should be declared fraudulent and void and that the present respondent should be ordered to pay the amount to him. After an inquiry, the District Court annulled the payment, which had been made on September 24, 1928, and in fact amounted to Rs.18,618-1-6, and directed the