Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
M.A. Sassoon And Sons Ltd. vs Gosto Behari De And Ors. on 12 May, 1927
Equivalent citations: AIR 1927 Cal 629, 103 Ind Cas 754
Author: Cuming


Cuming, J.

1. This is an appeal by Messrs. M.A. Sassoon & Sons, Creditors No. 1 of an insolvent Gosto Behari De, against the order of the District Judge of Hooghly, declaring the said Gosto Behari De to be an insolvent. The facts of this case are briefly these. The insolvent Gosto Behari De was a banian of the firm of Messrs. M.A. Sassoon & Sons. He apparently carried on business for some time in Calcutta and got into financial difficulties.

2. On the 13th November 1926 he made an application before the District Judge of Hooghly to be declared an insolvent. Notices appear to have been served on various parties. Meanwhile, on the 17th December 1926, the present appellants, Messrs. M.A. Sassoon & Sons applied to the insolvency Judge in the High Court to have Gosto Behari De declared an insolvent. On this application an order was passed fixing the hearing of this application in the High Court for Tuesday, the 18th January 1927, and there was a further order that all further proceedings in the Court for the District Judge of Hooghly on the application of the said debtor, Gosto Behari De, in the Insolvency Casa No. 75 of 1926, be stayed pending the hearing of the application in the High Court. It does not appear that this order was communicated to the Court concerned by the insolvency Court in the High Court as is the usual practice where proceedings of a Court are stayed by the order of another Court. When the case was called on for hearing before the District Judge the present appellants produced a copy of this order and disputed the jurisdiction of the District Judge of Hooghly to continue his proceedings. The District Judge, however, continued his proceedings and on the 13th January 1927 he adjudicated Gosto Behari De insolvent. This order has been challenged in appeal by Messrs. M. A, Sassoon & Sons on the ground that the proceedings in the Court of the District Judge of Hooghly having been stayed by the order of the insolvency Judge of the High Court the further proceedings were ultra vires and out of jurisdiction and therefore his order was bad in law. The respondents; have contended on the other hand that the Judge in the insolvency Court of the High Court had no power to stay the further proceedings in the insolvency Court at Hooghly. Therefore the District Judge acted within his jurisdiction and legally in continuing the proceeding and declaring Gosto Behari De insolvent.

3. The sole point to be decided in this appeal is whether the Judge in the insolvency Court of High Court had any power to stay the proceedings in the Court of the District Judge at Hooghly. Mr. Bose who has appeared for the appellants has suggested to us that the learned Judge, Mr. Justice Buckland, acted either under Section 18 of the Presidency Towns Insolvency Act or under the general power of superintendence which the High Court has over the Subordinate Court under Section 107 of the Government of India Act. With regard to Mr. Bose’s first contention Section 18 certainly would not justify the order of stay made by Mr. Justice Buckland. Section 18 provides that
the Court may, at any time, after the making of an order of adjudication stay any suit or other proceeding pending against the insolvent before any Judge or Judges of the Court or in any other Court subject to the superintendence of the Court.

4. Section 18, clearly, only applies to a case where the Judge exercising insolvency jurisdiction has already made an order of adjudication. That, however, is not the case at present, for admittedly no order of adjudication had been made in the case. No other provision of the Presidency Towns Insolvency Act has been shown to us under which any stay order could be made. No doubt in the exercise of his extraordinary original jurisdiction a Judge on the Original Side can call up any case pending before a mofussil Court. That, however, is done in the exercise of his extraordinary jurisdiction. It is quite clear from Section 90 of the Presidency Towns Insolvency Act that the Judge presiding over the Insolvency Court does not exercise this extraordinary power. Section 90 states that
in proceedings under this Act the Court shall have the like power and follows the like procedure as it has and follows in the exercise of its original civil jurisdiction,

and clearly therefore not of extraordinary jurisdiction.

5. Mr. Bose has next contended that the Court would have powers under Section 107 of the Government of India Act which gives the High Court power of superintendence over subordinate Mofussil Court’s to stay proceedings in the Court of the District Judge. The power of superintendence as contemplated by Section 107 of the Government of India Act, is exercised by the High Court as a whole in what, in my opinion, is the execution capacity and not by a single Judge exercising insolvency jurisdiction.

6. The conclusion, therefore, to which I am bound to come is that the District Court at Hooghly which is a Court of concurrent jurisdiction with the insolvency Court of the High Court was not bound by the order of stay granted by Mr. Justice Buckland and therefore the District Judge of Hooghly was right in disregarding it and completing his proceedings.

7. These are the only points which have been urged on behalf of the appellants. The appeal must therefore fail an his dismissed with costs. Hearing-fee ten gold mohurs of which five gold mohurs will be paid to the insolvent and the remaining five gold mohurs to the other respondents. The connected Rule is discharged without costs.

Mallik, J.

8. I agree.

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