Surjit Singh vs Amin Chand Khanna and others

P.C. Pandit, J.—On 24th of December, 1962. Jat Mal and his son Tek Chand executed a registered mortgage deed, regarding their residential house situate in village Jandiala Guru, district Amritsar, in favour of Surjit Singh for Rs. 14640/-. On 25th of April, 1963, both the mortgagors were declared insolvents. On 8th of November, 1963, the official receiver filed an application under sections 53 and 54 of the Provincial Insolvency Act, 1920 (hereinafter called the Act) for the annulment of the mortgage. Both the Insolvency Judge and the learned Additional District Judge, Amritsar, on appeal, have annulled the said mortgage, holding that it was without consideration and not executed bona fide. It was a fraudulent transfer and the same had been made to give preference to Surjit Singh and his brother Sardul Singh. Against the order of the Additional District Judge, the present appeal has been filed by Surjit Singh u/s 75 of the Act.

A preliminary objection has been raised by the Learned Counsel for the respondents that BO second appeal, u/s 75 of the Act, was competent against the order passed by the lower appellate court confirming the order of the Insolvency Judge made under sections 53 and 54 of the Act, annulling a sale or a mortgage and the same was liable to be dismissed on that ground alone. Reference in this connection was made to the provisions of section /5 of the Act and a number of judicial decisions, as for example AIR 1931 153 (Nagpur) P. Alagirisubba Niak v. Official Receiver of Tinnevelley AIR 1931. Mad. 745, Chet Ram Ramrachh Pal v. Atma Ram A I.R. 1933 Lah. 631: 34 P.L.R. 950, John A. David v. A.L.A. Alagappa Chettiar AIR 1986 Mad 432, Jiwan Ram v. Official Receiver A.I.R.1940 Lah. 708 : 37 P.L.R. 224, and Dattatraya Chandraya Bachuwar Vs. K.L. Bawachekar,

In view of the various authorities, mentioned above, Learned Counsel for the petitioner conceded that their was merit in the preliminary objection raised by the Learned Counsel for the respondents. He, however, requested that the memorandum of appeal may be treated as a petition for revision.

The powers of this Court in revisions in such cases are given in the first proviso to section 75(1) of the Act. It lays down -

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.

It would thus be seen that this Court has to see whether the order passed by the learned Additional District Judge was according to law or not. As I have already mentioned above, the courts below have given concurrent findings of fact the mortgage in favour of the petitioner was without consideration and had been effected to give undue preference to the petitioner and his brother. It was also held that the said transfer was fraudulent. In view of these findings of fact which are based on the evidence produced in the case, it seems to me that there is no valid ground for interference even in revision. The result is that the preliminary objection raised by the Learned Counsel for the respondents is sustained and the appeal is dismissed, but with no order as to costs.