Leave to appeal under section 75(3) of the Provincial Insolvency Act, 1920 is mandatory and must be obtained before filing an appeal to the High Court. The admission of an appeal by the High Court does not imply that leave to appeal has been granted.

1. :- These cases raise a question of some importance relating to the construction of section 75(3) of the Provincial insolvency Act, 1920 (for short the Act).

2. Before narrating the necessary facts it will be useful to refer section 75 of the Act which runs as under -

"75. Appeals.-(1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come from 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 as 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 a District Court on appeal from a decision of subordinate Court under section 4 may appeal to the High Court on any of the grounds mentioned in sub-section (1) of Section 100 of the Code of Civil Procedure , 1908.

(2) Any such person aggrieved by any such decision or order of a District Court as is specified in schedule 1st, come to or made 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 appeal to the District Court and to the High Court under this section shall be thirty days and ninety days respectively."

3. A look at sub-section (3) of section 75 of the Act goes to show that a person aggrieved by the order of the 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. (Emphasis supplied)

4. The appellant was adjudged insolvent by the learned District Judge Jaipur City under the provisions of the Act. The agricultural land of the appellant was auctioned by the Receiver and bid was confirmed by the District Judge in favour of auction-purchaser (respondent No. 13) vide order dated May 6, 1983. Against this order the appeal No. 169 of 1983 was filed by the appellant.

5. The appellant, after filing appeal No. 169 of 1983, submitted an application on January 3, 1985 before the learned District Judge with the averments that auction proceedings were void ab initio being in contravention of Sections 28 and 60 of the Act and also contravened section 60 of the Code of Civil Procedure and other relevant provisions of the Rajasthan Land Revenue Act 1956 and the Rajasthan Tenancy Act, 1955, therefore all proceedings in respect of auction of property be declared null and void. The learned District Judge vide its order dated January 29, 1988 dismissed the application. Against this order the appellant had preferred the appeal No. 315 of 1988.

6. Admittedly both the appeals were filed without obtaining the leave of the District court or of this court as was necessary under sub-section (3) of section 75 of the Act. A perusal of the order sheets of the case filed demonstrates that both the appeals No. 169 of 1983 and 315 of 1988 were respectively admitted by this court (Hon'ble S.N. Bhargava J. as he then was) on Sept. 7, 1983 and July 5, 1989.

7. It appears that the appellant neither cared to examine the provisions contained in sub-section (3) of section 75 of the Act, nor brought these provisions to the knowledge of the court and this court admitted the appeals without looking to the relevant statutory provisions.

8. Arguments in part were heard by this court on Feb. 3, 1997 and the learned counsel for the auction purchaser raised preliminary objection about the competency of the appeals in view of section 75(3) of the Act. The cases were posted for further argum