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TMI Blog1957 (12) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of the account books and the properties which may be in the possession of the applicant. As to the properties, which may not be in the actual possession of the applicant, but which may be in the possession either of the opponent No. 1 or of any other relations of the applicant, those properties were not to be taken by the receiver from the possession of those persons. 2. It is not necessary for us to go into the merits of this appeal, because, upon the point of law we take the view that the appellant ought to have filed this appeal, not before the High Court, but before the District Court, Sorath, at Junagadh. The provisions of Section 75 of the Provincial Insolvency Act are perfectly clear on this point. Section 75 occurs in Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d decided it, had no jurisdiction to do so. Nut, even upon the assumption that a requisite notification was issued by the State of Saurashtra, investing the Assistant Judge with jurisdiction under the Provincial Insolvency Act, even so, there is no doubt that an Assistant Judge's Court is a Court subordinate to a District Court. Indeed, the provisions of Sub-section (1) of Section 3 would themselves make this position clear. The proviso to this sub-section says that a notification may be issued by the State Government investing any Court subordinate to a District Court, with jurisdiction under the Insolvency Act. Therefore, upon the plain language of the proviso to Sub-section (1) of Section 3, it must be clear that the Assistant Judge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Had he not been a Court subordinate to the District Court, there would be no necessity to issue a notification under Sub-section (1) of Section 3. Therefore, once we come to the conclusion that the Assistant Judge, though invested with jurisdiction under Sub-section (1) of Section 3, is a Court subordinate to the District court, then, under Sub-section (1) of Section 75 of the Act, an appeal from a decision of the subordinate Judge must lie, in the first instance, to the District Court, and not to the High Court. In this connection, a reference to Section 5 of the Saurashtra Ordinance No. XI of 1948 would not be out of place. Section 5 of the Ordinance occurs under Part III and Part III relates to District Courts. Section 5 provides t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal 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. The intention of the legislature, when it enacted Part VI of the Act, would be clear from the proviso to Sub-section (1) of Section 75. The legislature intended that from a decision of a Court subordinate to the District Court, an appeal must lie, in the first instance, to the District Court itself, but the High Court in order to satisfy itself that an order made by the District Court in appeal was an order according to law, may call for the case and pass such orders as the High Court thinks fit. This would be a revisional jurisdiction of the High Court, which is quite distinct from an appellate jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter, and without examining the validity or otherwise of the order passed by the learned Assistant judge on merits, we order that the appeal memo be returned to the appellant's learned advocate for presenting the same before the proper Court. As to costs, we shall make no order.
6. Before parting with this judgment, we would point out that the leave that was granted by the Assistant Judge to the appellant for filing an appeal before the High Court was granted under a misapprehension. The learned Judge did not realise that an appeal from an order passed by him would not lie to this Court but to the District Court. That being so, the leave granted by the learned Assistant judge would be infructuous.
7. Order accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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