R.R.Rastogi, J. - (1.) This is a revision under Section 75 of the Provincial Insolvency Act. hereafter 'the Act'. The brief facts are these. The applicant Noor Moham-mad Khan was adjudged as insolvent by order dated 21-1-1973 and one year's time was specified for making an application for discharge. In pursuance of that order the applicant made such an application under Section 41 (1) of the Act. An ex parte order was passed on that application on 2-11-1976 discharging the applicant. On 30-11-1976 Rashid Ahmad, opposite party No. 1, filed an application under Order 9, Rule 13 C. P. C. for the setting aside of that order. He filed an affidavit in support of that application. The ground taken by him was that his brother had met with an accident at Delhi and in that connection he had gone to Delhi and had not been able to appear on the date fixed. That application was contested by the applicant and he also filed a counter-affidavit. He disputed that Rashid Abmad's brother had met with any accident and asserted that on the date fixed i. e. on 2nd November, 1976, Rashid Ahmad was present.
(2.) The court of first instance allowed the application of Rashid Ahmad and set aside the order dated 2nd November, 1976. Aggrieved the applicant filed an appeal under Section 75 of the Act which came up for hearing before the V Additional District Judge, Moradabad. The learned Additional District Judge took the view that since the trial court had allowed the application made under Order 9. Rule 13 C. P. C. no appeal lay against that order under Order 43, C. P. C. In his opinion Section 75 of the Act was not applicable to the case and the remedy of the applicant was that he could have moved a revision application under Section 115 C. P. C. before the High Court. The lower appellate Court considered the matter on merits as well and concurred with the view which had been taken by the trial court. In the result, the appeal was dismissed. The present revision has been directed against this order.
(3.) The first submission made before me on behalf of the applicant was that his appeal under Section 75 of the Act was clearly maintainable and the view taken by the lower appellate Court is erroneous. After hearing counsel for parties I am not inclined to agree with this contention. Section 45 of the Act provides for general powers of Courts. In so far as it is relevant for the present purpose it reads :- "5 (1) Subject to the provisions of this Act. the Court in regard to the proceedings under this Act shall have the same powers and shall follow the same procedure as it has and follows in exercise of the original civil jurisdiction. (2) ....." It would be seen that part I of this Act provides for constitution and powers of the Court and Section 3 (1) says that the District Courts shall be the courts having jurisdiction under this Act. Section 5, as noted above, provides for general powers of Courts and empowers the courts in regard to proceedings under this Act to have the same powers which a court of original civil jurisdic-tion has and also to follow the same procedure as is followed by the latter. In other words for matters of procedure the provisions of the Code of Civil Procedure have been extended to the proceedings under this Act. On this view, certainly for setting aside the ex parte order the remedy of the opposite party lay by way of an application under Order 9, Rule 13 C. P. C. The question, however, arises if once an order has been passed under Order 9, Rule 13 C. P. C. for further remedy it is only the provisions of the Code which have to be looked into or it is to be pursued on the basis of the provisions made in the Act. In my opinion it is only for the purpose of procedure which is to be followed in regard to the proceedings under this Act that the provisions of C. P. C. have been extended. When the matter comes to substantive rights, one has to find out provisions for them in the Act itself. Right of appeal is a substantive right and it is Section 75 of the Act which provides for the filing of appeal. Sub-section (1) will be relevant for the present purpose. It reads :- "75 (1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come to 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 was according to law, may call for the case and pass such order with respect thereto as it thinks fit." The second proviso to this sub-section as also Sub-sections (2), (3) and (4) are not relevant for the present purpose. It would be seen that the key words which confer a right of appeal used in Sub-section (1) are "aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction". In other words the impugned decision or order should have been passed in the exercise of the insolvency jurisdiction. Further, the words "by a decision come to or an order made" are words of a wide amplitude. They will certainly cover the impugned order which had been made by the trial court in exercise of insolvency iurisdiction and against that order an appeal did lie to the District Court to which such court was subordinate.;