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2009 Supreme(Chh) 103
2009(2) C.G.L.J. 256
HIGH COURT OF CHHATTISGARH, BILASPUR
Shri 1. P. Sharma, J.
ARUN KUMAR AGRAWAL - Appellant
Vs.
FIRM JEWARCHAND THAKARSHI & OTHERS - Respondents
F.A. P.R. No. 779 of 2008,
Decided on 20-3-2009.
Shri Ravi Rajall Sinha, Advocate, for the Appellant.
The main legal point established in the judgment is that the right of appeal under the Provincial Insolvency Act, 1920 is subject to specific provisions regarding the forum for filing the appeal, and the appeal must be filed before the appropriate court as per the statutory provisions.
Headnote:
Provincial Insolvency Act, 1920 - Maintainability of Appeal - Appeal filed before the wrong court
Fact of the Case:
The appeal was filed against an order passed by the 4th Civil Judge, Class-I Raipur in an insolvency case. The appellant argued that the appeal was maintainable before the current court, while the respondent contended that it was not maintainable.
Finding of the Court:
The Court found that the order passed by the 4th Civil Judge Class-I, Raipur, being a Court subordinate to the District Court, was appealable before the District Court in accordance with the provisions of the Provincial Insolvency Act, 1920. Therefore, the appeal filed before the current Court was not maintainable.
Issues: The main issue was the maintainability of the appeal filed before the current Court, as per the provisions of the Provincial Insolvency Act, 1920.
Ratio Decidendi: The Court relied on Section 75 of the Act of 1920, which provides for the right of appeal against decisions or orders made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court. The Court interpreted the provisions and concluded that the appeal should have been filed before the District Court, not the current Court.
Final Decision: The appeal filed before the current Court was found to be not maintainable and was dismissed accordingly, with no order as to costs.
1. This appeal is directed against the order dated 10/1/2008 passed by the 4th Civil Judge, Class-I Raipur in Insolvency Case No. 01/07.
2. Registry has pointed out the default that in the light of Section 75 of the Provincial Insolvency Act, 1920 (hereinafter referred to as 'the Act of 1920') the present appeal is not maintainable.
3. Learned counsel for the appellant submits that present appellant has filed the appeal in accordance with sub-section 3 of Section 75 of the Act of1920 and present appeal is maintainable before this Court
4. It reveals from the order impugned that 4th Civil Judge Class-I, Raipur has passed the order in insolvency proceeding. Provision for filing the appeal against the order of different Courts have been provided in Section 75 of the Act of 1920. Section 75 of the Act of 1920 reads as follows:
(1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court, may appeal to the District Court, and the order of the District Court upon such appeal shall be final:
Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it thinks fit:
Provided further, that any such person aggrieved by a decision of the District Court on appeal from a decision of a subordinate Court under Section 4 may appeal to the High Court on any of the grounds mentioned in subsection (1) of Section 100 of the Code of Civil Procedure, 1908 (5 of 1908).
(2) Any such person aggrieved by any such decision or order of a District Court as is specified in Schedule I, come to or may otherwise than in appeal from an order made by a subordinate Court, may appeal to the High Court.
(3) Any such person aggrieved by any other order made by a District Court otherwise than in appeal from an order made by a subordinate Court may appeal to the High Court by leave of the District Court or of the High Court.
(4) The periods of limitation for appeals to the District Court and to the High Court under this section shall be thirty days and ninety days, respectively.
5. Right of appeal is statutory right provided under the act and person. aggrieved may prefer an appeal against the order or decision appealable, before the forum in accordance with the provision contained in statue. In accordance with sub Section 3 of Section 75 of the Act of 1920 an appeal may be filed to the High Court by the aggrieved person against whom any order has been passed by the District Court otherwise than in appeal from an order made by subordinate Court. Sub-section 1 of Section 75 of the Act of 1920 provides the remedy of appeal to the District Court against the decision or order made by a Court subordinate to a District Court in the exercise of insolvency jurisdiction.
6. Order impugned reveals that order has been passed by the 4th Civil Judge Class-I, Raipur in insolvency case No. 01107. Court of Civil Judge Class1 is a Court subordinate to District Court. Order has not been passed by the District Court otherwise than in appeal. Therefore, the order passed by the Court subordinate to District Court is appealable before the District Court in accordance with sub-section-I of Section 75 of the Act of 1920 and not before this Court in accordance with sub-section 3 of Section 75 of the Act of 1920. Present appeal filed by the appellant before this Court is not maintainable in accordance with subsection-I of Section 75 read with sub-section 3 of Section 75 of the Act of 1920. Consequently, same is liable to be dismissed and is hereby dismissed accordingly.
7. No order as to costs.
Appeal Dismissed.
