Order 41, Rule 11 of the Civil Procedure Code applies to appeals under Section 75(3) of the Provincial Insolvency Act, 1920, by virtue of Section 5(2) of the Act and the relevant Appellate Side Rules of the Calcutta High Court.

A. M. BHATTACHARJEE, J.

( 1 ) - We have granted leave under Section 75 (3) of the Provincial Insolvency Act, 1020, to appeal against the impugned order passed by the Fourth Additional District Judge, Alipore and we have thought that the matter should now go to the Officer concerned of the Judicial Department of this Court who would admit the appeal, cause it to be registered and posted to the appropriate Bench for hearing under Order 41, Rule 11 of the Civil Procedure Code.

( 2 ) MR. R. N. Mitra, the learned Counsel for the appellant, has however urged that this appeal having been provided for by Section 75 of the Provincial Insolvency Act is to be regulated only by the provisions of the said Act and not. by the provisions of Order 41 of the Code of Civil Procedure. In support of his submission Mr. Mitra has relied on a Division Bench decision of the Nagpur High Court in Wamanrao vs. Shrikumar (A. I. R. 1946 Nag-pur 42) where it has been held (at 43) that in the matters of appeals in insolvency cases, the courts must be governed by Section 75 of the Act which deals with question of appeals, and "must not look to the provisions of the Civil Procedure Code". Mr. Mitra has also referred to a Division Bench decision of the Madras High Court In Re Pedda Iswara Reddy (A. I. R. 1948 Madras 520) where it has been observed (at 521) that "it is not permissible to read the provisions of Section 75 (of the Provincial Insolvency Act) with a further modification that the provisions are subject to the provisions of: the Civil Procedure Code in regard to appeals". Mr. Mitre has also drawn our attention to Mulla's Tagore Law Lectures on the Law of Insolvency (3rd Edition - 1977) where (at 649) observations have been made to the same effect and reference has been made to the aforesaid Nagpur and Madras decisions.

( 3 ) SECTION 5 (2) of the Provincial Insolvency Act clearly provides that "subject to the provisions of this Act. High Courts and District Courts, in regard to proceedings under this Pct in Courts subordinate to them, shall have the same powers and shall follow the same procedure as they respectively have and follow in regard to Civil Suits". Under Section 5{2), therefore, Order 41 of the Civil Procedure Code should apply to the hearing of the appeals in insolvency cases, but such application would obviously be subject to the provisions of the, Provincial Insolvency Act. In other words, while the provisions in the Provincial Insolvency Act regarding appeals would outweigh the contrary as well as the corresponding provisions of the Code of Civil Procedure relating to appeals, the provisions of the Code of Civil Procedure relating to appeals which are not contrary to the provisions of the Provincial Insolvency Act and which relate to matters for which no provision is made in the iaid Act, would nevertheless regulate all appeals in insolvency cases because of Section 5 (2) of the Provincial Insolvency Act. To illustrate, appeals in insolvency cases having been expressly provided in Section 75 of the Provincial Insolvency Act, the appealability of an order shall be solely determined with reference to that Section. But the procedure relating to the hearing of the appeal not having been provided for in the Provincial Insolvency Act, such hearing would be regulated by the procedure contained in Order 41 of the Code, in the absence of any contrary provision in the Provincial Insolvency Act in view of Section 5 (2) of the said Act, We are inclined to think and this we say with due respect, that the proposition in the Nagpur Division Bench decision in Wamanrao (supra) to the effect that in matters relating to appeals in Insolvency cases. "the court must not look to the provisions of the Civil Procedure Code" was stated rather too broadly without proper advertence to the provision of Section 5 of the Provincial Insolvency Act.

( 4 ) OUR view would find support from the decision of the Lahore High Court in Bir Sing vs. Humphrey (A. I. R. 1930

Click Here to Read the rest of this document