D. Yellamanda vs Nappuraju Raghaviah and Another

Horace Owen Compton Beasley, Kt., C.J.—This is an appeal from an order made by Stone, J. during vacation of 1932. The appellant here

was the decree-holder in O.S. No. 653 of 1929 in the District Munsif''s Court of Bapatla. In execution of that decree he brought the respondent''s

property to sale, the sale being fixed for the 13th June, 1932. Before the sale could take place, however, an application was presented to this High

Court during the vacation to receive an insolvency petition against the judgment-debtor presented by the respondent and asking at the same time

for a stay of the sale. An interim order was made by Stone, J. on the 11th June, 1932, as follows:

Sale stayed. O.R. Guntur interim Receiver. Notice for 21-6-1932.

On 21st June, 1932, that order was made final, the papers being transmitted to the Sub-Court of Tenali for disposal after the re-opening of that

Court. The application was presented in this High Court because at that time the Sub-Court of Tenali, which was the proper Court to deal with the

matter, was closed for the summer recess and was not due to be reopened until the 27th June, 1932.

The question before us in this appeal is whether this High Court had jurisdiction to pass the order passed by our learned brother. That question

depends upon whether the High Court has, during the vacation, any power to make any order with regard to any matter within the jurisdiction of a

mufassal Court which is, at the time, closed for the summer recess which matter was not pending at the time of the closing of that Court. A similar

position arose in Jumna Bai Vs. S. Rm. M. Rm. Ramanathan Chettiar represented by guardian ad litem Muthayee Achi alias Chittal Achi and

Another, , a decision of Ramesam, J., with which I agree. He there held that, where a suit is pending in a mufassal Court which is closed for the

summer recess, the High Court can transfer the case to itself under Clause 13 of the Letters Patent and pass interim orders in the case but that such

an application for such transfer must be made on the Original Side of the High Court and that, with regard to cases or suits which are not pending

in a mufassal Court, the High Court has no power to make any order with regard to them. In the course of his judgment our learned brother very

carefully discusses the various clauses in the Letters Patent in order to sec whether any of them gives the jurisdiction to the High Court which was

claimed by the petitioner in that case and is claimed by the respondent here and he also refers to Section 107 of the Government of India Act.

There is one clause, however, in the Letters Patent to which he does not refer and that is Clause 18 which provides for the jurisdiction of the High

Court in insolvency matters; and the respondent here claims that, by reason of that clause, the High Court has jurisdiction to pass such an order as

was passed by Stone, J. in this case; and it is the latter part of that clause which is in particular relied upon. It is perhaps necessary to set out the

whole of the clause which reads as follows:

And We do further ordain that the Court for relief of insolvent debtors at Madras shall be held before one of the Judges of the said High Court of

Judicature at Madras and the said High Court, and any such Judge thereof

and it is the following part which is relied upon by the respondent:

shall have and exercise within the Presidency of Madras such powers and authorities with respect to original and appellate jurisdiction and

otherwise as are constituted by the laws relating to insolvent debtors in India.

The learned Counsel for the respondent concedes that under that clause the High Court is not empowered to adjudicate a debtor, who is

outside the limits of the Presidency-town, an insolvent, but he says that it gives that power when the mufassal Courts which would ordinarily

exercise the jurisdiction happen to be closed. It seems to me that, having conceded that the High Court has no authority to adjudicate an insolvent

who is in the mufassal, it is quite impossible to argue that it is given that power for a limited period during the year, vis., when the High Court is

open during the vacation and when the mufassal Courts are closed. That seems to me to be an impossible position. Nor is it at all justified by the

words of that clause which clearly mean that, with regard to the original jurisdiction of the High Court, that is to be governed by the Presidency-

towns Insolvency Act and that with regard to the appellate jurisdiction in respect of case arising under the Provincial Insolvency Act that is to be

regulated by that Act. This means that the High Court only has power to deal with provincial insolvencies in the exercise of its appellate jurisdiction

and that in its original jurisdiction it only has power to deal with insolvencies which are in the Presidency-town itself such as come within the scope

of the Presidency-towns Insolvency Act. Neither of those Acts give the High Court any power to make any such order as was passed in this case.

Therefore, the order passed by our learned brother was without jurisdiction and must be set aside and this appeal allowed with costs.

Bardswell, J.

I agree.