A.M. Bhattacharjee, J.

1. We have granted leave under S.75(3) of the Provincial Insolvency Act, 1920, to appeal against the impugned order passed by the Fourth Additional District Judge, Alipore and we have thought that the matter should now go to the Officer concerned of the Judicial Department of this Court who would admit the appeal, cause it to be registered and posted to the appropriate Bench for hearing under Order 41, Rule 11 of the Civil Procedure Code.

2. Mr. R.N. Mitra, the learned Counsel for the appellant, has however urged that this appeal having been provided for by S.75 of the Provincial Insolvency Act is to be regulated only by the provisions of the said Act and not by the provisions of Order 41 of the Code of Civil Procedure. In support of his submission Mr. Mitra has relied on a Division Beach decision of the Nagpur High Court in Wamanrao v. Shrikumar, AIR 1946 Nag 42, where it has been held (at p. 43) that in the matters of appeals in insolvency cases, the Courts must be governed by S.75 of the Act which deals with question of appeals, and "must not look to the provisions of the Civil Procedure Code". Mr. Mitra has also referred to a Division Bench decision of the Madras High Court In Re Pedda Iswara Reddy, AIR 1948 Mad 520 [LQ/MadHC/1948/44] , where it has been observed (at p. 521) that "it is not permissible to read the provisions of S.75 (of the Provincial Insolvency Act) with a further modification that the provisions are subject to the provisions of the Civil Procedure Code in regard to appeals." Mr. Mitra has also drawn our attention to Mullas Tagore Law Lectures on the Law of Insolvency (3rd Edition - 1977) where (at p. 649) observations have been made to the same effect and reference has been made to the aforesaid Nagpur and Madras decisions.

3. S.5(2) of the Provincial Insolvency Act clearly provides that "subject to the provisions of this Act, High Courts and District Courts, in regard to proceedings under this Act in Courts subordinate to them, shall have the same powers and shall follow the same procedure as they respectively have and follow in regard to civil suits." Under S.5(2), therefore, Order 41 of the Civil Procedure Code should apply to the hearing of the appeals in insolvency cases, but such application would obviously be subject to the provisions of the Provincial Insolvency Act. In other words, while the provisions in the Provincial Insolvency Act regarding appeals would outweigh the contrary as well as the corresponding provisions of the Code of Civil Procedure relating to appeals, the provisions of the Code of Civil Procedure relating to appeals which are not contrary to the provisions of the Provincial Insolvency Act and which relate to matters for which no provision is made in the said Act, would nevertheless regulate all appeals in insolvency cases because of S.5(2) of the Provincial Insolvency Act. To illustrate, appeals in insolvency cases having been expressly provided in S.75 of the Provincial Insolvency Act, the appeal ability of an order shall be solely determined with reference to that Section. But the procedure relating to the hearing of the appeal not having been provided for in the Provincial Insolvency Act, such hearing would be regulated by the procedure contained in Order 41 of the Code, in the absence of any contrary provision in the Provincial Insolvency Act in view of S.5(2) of the said Act. We are inclined to think, and this we say with due respect, that the proposition in the Nagpur Division Bench decision in Wamanrao (supra) to the effect that in matters relating to appeals in Insolvency cases, "the court must not look to the provisions of the Civil Procedure Code" was stated rather too broadly without proper advertence to the provision of S.5 of the Provincial Insolvency Act.

4. Our view would find support from the decision of the Lahore High Court in Bir Singh v. Humphrey, AIR 1930 Lahore 112(1), where the provisions of Rules 19 and 21 of Order 41, providing for readmission of appeal dismissed for default and rehearing of appeal decreed ex parte have been held to be applicable to appeals under the Provincial Insolvency Act because of S.5(2) thereof. An earlier decision of the Nagpur High Court in Jaikrishna v. Sawatram, AIR 1940 Nag 292, has also held that because of S.5(2) of the Provincial Insolvency Act, the provisions of Rule 22 of Order 41 providing for cross-objections by the respondents are applicable to appeals under the said Act. It, however, appears that a Division Bench of the Allahabad High Court in Zahid Hussain v. B. Khairati Lal, AIR 1954 All 419 [LQ/AllHC/1953/349] has held (at p. 420) that "there is nothing in the Provincial Insolvency Act making the provisions of Order XLI, Rule 22, Civil Procedure Code applicable to an appeal under S.75". If it were necessary for us to decide that precise question, we would have preferred to follow the Nagpur decision in Jaikrishna (supra) in preference to this Allahabad decision in Zahid Hussain (supra), as we would have thought, obviously with respect, that the impact of the provisions of S.5(2) of Provincial Insolvency Act was not duly taken into consideration is that Allahabad decision.

5. Mr. Mitra has, however, urged that even assuming that S.5(2) of the Provincial Insolvency Act would otherwise bring into operation the provisions of Order 41 of the Code of Civil Procedure for regulating the procedure for hearing of appeals under S.75 of the Act, the provisions of Rule 11 of Order 41 cannot be attracted to appeals provided under S.75(3). Mr. Mitra has contended that an appeal under S.75(3) would lie only a leave to appeal being granted by the Court and since the Court would grant leave only in a case found to be fit for appeal, any further hearing for admission of appeal under Order 41, Rule 11 of the Code, where leave has already been granted under S.75(3), would be wholly inappropriate as that would amount to a futile duplication of work. Mr. Mitra has urged that under S.5(2) of the Provincial Insolvency Act, the provisions of Order 41 of the Code can apply to appeal in insolvency cases only in matters not provided for in the Provincial Insolvency Act. But since the granting of leave under S.75(3) provides for some sort of preliminary hearing as to the fitness of the appeal, the provisions of Order 41, Rule 11 of the Code providing for admission hearing of the appear would obviously become inapplicable to appeals under S.75(3) of the Provincial Insolvency Act in view of S.5(2) of the said Act.

6. But does Rule 11 of Order 41 provide for admission of appeal Does the Court, under Rule 11, decide as to whether an appeal is to be admitted or not It appears that an impression has gained ground that a Court really admits an appeal, particularly a Second Appeal and also a First Miscellaneous Appeal, only after hearing the same under Rule 11 of Order 41. But the impression is wholly erroneous. The appeal cannot but stand admitted at a stage anterior to its hearing under Rule 11 and the Rule only enables the Court to dismiss the appeal at an early stage without sending notice to the lower Court and without serving notice on the respondent. As the Rule makes it irresistibly clear, what is determined in a hearing under Rule 11 is not whether the appeal is to be admitted, but whether the appeal, which cannot but already stand admitted, is to be dismissed. As the new Rule 11A, inserted by the 1976-Amendment, now makes it further clear what is heard under Rule 11 is the appeal itself and not the question of its admission. This position would emerge with greater clarity from the relevant provisions of the Appellate Side Rules of this Court - Part II, Chapter V, Rule 17 and Chapter IX, Rule 79. Rule 17(a) and Rule 79 as aforesaid dispense with any hearing under Order 41, Rule 11 of the Code in respect of appeals from Original Decrees and appeals under Workmens Compensation Act, appeals from Orders under Art.226 of the Constitution, appeals from the decision of the Claims Commissioner under the Indian Railway Act and appeals from the Award of Claims Tribunal under the Motor Vehicles Act and it is provided that in respect of any such appeal the concerned Department "shall........ admit it and cause it to be registered and to issue to the respondent" and it is obvious that if an appeal is to be admitted only on a hearing under Rule 11 of Order 41 of the Code, such a hearing could not be dispensed with and the appeal could not be admitted without such hearing. Rule 17(b) provides for hearing under Order 41, Rule 11 in respect of appeals from Appellate Decrees and from Orders other than those mentioned above, but clearly provides for admission of such appeal before being placed for hearing under Order 41, Rule 11, the relevant words being "shall admit it, cause it to be registered and posted to a Bench for hearing under Order XLI, Rule 11 of Civil Procedure Code.".

7. The very word may in Order 41 Rule 11 cannot but indicate that the court may or may not hear a matter under Rule 11, and the hearing under the said Rule could not thus be made optional if the same was to be the only channel through which an appeal can be routed in. We should, therefore, have no doubt that Rule 11 does not provide for any hearing as to the admission of the appeal and we accordingly repel the contention of Mr. Mitra that if an appeal, for which leave has been granted under S.75(3) of the Provincial Insolvency Act, is again placed for hearing under Order 41, Rule 11, that would amount to another admission hearing and, therefore, the application of Order 41 Rule 11 should be held to be impliedly barred under S.5(2) of the Provincial Insolvency Act.

8. But even assuming that S.5(2) of the Provincial Insolvency Act does not make Order 41. Rule 11 of the Code applicable to an appeal under S.75(3) of the said Act, we would still have to hold that the same has been made applicable by the relevant Appellate Side Rules of this Court. Rule 17(b) of the Rules, referred to hereinabove, clearly provides that "an appeal from an Appellate Decree or an appeal from an order, other than an appeal under the Workmens Compensation Act and appeal from an Order under Art.226 of the Constitution."Shall, after admission and registration, be "posted to a Bench for hearing under Order XLI Rule 11, Civil Procedure Code". As already noted, under Rule 79 (part II, Chapter IX) of the Appellate Side Rules, appeals from the decision of the Claims Commissioner under the Indian Railways Act and appeals from the Award of Claims Tribunal under the Motor Vehicles Act have also been excluded from the operation of rule 17(b). Be that as it may, according to these provisions of the Appellate Side Rules, an order appealable under S.75(3) of the Provincial Insolvency Act, not thus being excluded, will be required to be placed for hearing under Order 41 Rule 11 of the Code. It is true that, on its own force, Order 41 can apply only to a decree under the Civil Procedure Code and to such Orders as are appealable under the Civil Procedure Code under S.104 read with Order 43 hereof and it is obvious that an order appealable under S.75(3) of the Provincial Insolvency Act is neither a decree nor an appealable order under the Code. But the provisions of Order 41 may be made applicable to other appeals also by suitable legislative provision to that effect and Rule 17 of the Appellate Side Rules is such a legislative provision. The Appellate Side Rules have all the authorities of a legislation or statutory law under the provisions of the Charter Act, Clause 36 of the Letters Patent, S.122 of the Civil Procedure Code and under Art.225 of the Constitution and since Rule 17 of the Appellate Side Rules has made the provisions of Order 41 Rule 11 of the Code applicable to various appeals including appeals from an Order under the Provincial Insolvency Act, its application cannot be resisted, particularly in the absence of any contrary or corresponding provision in the Provincial Insolvency Act. As already noted, we have found no such provision in the Provincial Insolvency Act which is incompatible with the application of Order 41, Rule 11 of the Code to appeals under that Act and therefore its application to such appeals cannot, in our view, be doubted or disputed.

9. We would accordingly hold that the instant appeal under S.75(3) of the Provincial Insolvency Act is to be posted to the appropriate Bench for hearing under Order 41, Rule 11 of the Code of Civil Procedure and we would direct the Office to take necessary steps to that effect.

10. Ajit Kumar Nayak, J.

I agree.

Ordered accordingly.