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1934 Supreme(SC) 1
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD ALNESS, AND SIR LANCELOT SANDERSON.
MAUNG BA THAW - Appellant
Versus
MA PIN - Respondents
On appeal from the High Court at Rangoon.
Decided On : Jan. 15. 1934.
Solicitor for appellant :J. E. Lambert. Solicitors for respondent: T. L. Wilson & Co.
A statutory provision declaring a District Judge's decision final does not exclude appeals to the highest court if the Act provides a right of appeal to the High Court, as such proceedings are governed by the Code of Civil Procedure.
Headnote:(A) Provincial Insolvency Act, 1920 - Sections 4(2), 33, 54, and 75(2) - Code of Civil Procedure - Competency of appeal - Where a statute provides that the decision of a District Judge is final "notwithstanding anything contained in any other law for the time being in force," but also provides a limited right of appeal to the High Court, such a provision does not exclude the right of further appeal to the highest appellate authority. When a right of appeal is granted to an ordinary court of the country, the procedure, orders, and decrees of that court are governed by the ordinary rules of the Code of Civil Procedure.
(B) Evidence - Appreciation of fact - Credibility of witnesses - In an appeal involving a question purely of fact, the appellate court will not interfere with the findings of the lower court unless it is satisfied that the lower court has come to an erroneous conclusion. If the High Court finds witnesses credible and the appellant fails to prove this view is wrong, the finding of fact will be upheld.
Facts of the case:
In insolvency proceedings, a claimant applied to be placed on the schedule of creditors. The District Court rejected the application on the ground that the indebtedness was not proved. On appeal, the High Court reversed this order and directed the claimant's name to be included as a creditor. The receiver in the insolvency appealed this decision. In earlier proceedings, the receiver had successfully applied to have a payment made to the claimant declared fraudulent and void, which the claimant had argued was payment for goods stored under a lien. The current claim of indebtedness was based on several promissory notes, for which only loose counterfoils were produced as evidence.
Findings of Court:
The court rejected the preliminary objection that the appeal was incompetent due to the finality clause in the insolvency statute. On the merits, the court found that the appellant failed to satisfy the court that the High Court had taken an erroneous view regarding the credibility of the witnesses.
Issues: Whether the appeal was competent given the statutory provision that the District Judge's decision is final, and whether the claimant had proved the indebtedness of the insolvent.
Ratio Decidendi: A statutory provision declaring a decision final does not preclude an appeal to the highest court if a right of appeal to the High Court is provided within the same Act, as the High Court's proceedings are governed by the ordinary rules of the Code of Civil Procedure. Additionally, findings of fact regarding witness credibility by a High Court are not disturbed unless shown to be clearly erroneous.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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appeals
- competency of appeal
- finality of judgments
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evidence
- credibility of witnesses
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appeals
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insolvency law
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provincial insolvency act, 1920
- schedule of creditors
- voidable payments
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provincial insolvency act, 1920
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
