SRIKANTIAH AND Vs. HONNE GOWDA

JUDGEMENT

(1.) The question raised in this case is whether an order rejecting an application filed under Order 22, Rule 3, Civil P. C., for the respondents 1 and 2 being brought on record in place of a acceased petitioner, in an insolvency case is appealable.

(2.) Two persons Ningamma and Thimme Gowda (sic) ed an application on 16-5-1944 in the Court of the Subordinate Judge, Mysore, for one Boriah being adjudged Insolvent, The case was registered as (sic) C. No. 16 of 1943-44 are an order of adjudication was passed thereby on 8-1-1945. Without referring to what happened in the course of the subsequent proceedings it is sufficient for the purpose of this case to state that an application (sic)A. No. VI was filed on 24-5-51 by the respondents 1 and 2 alleging that Thimme Gowda 2nd petitioner in I. C. No. 16/43-44 died in February, 1951 and that they being his son and widow respectively may be impleaded as his legal representatives. The 3rd respondent in the original petition who is an alienee from the insolvent, objected to this on the ground that the application was filed beyond 90 days from the date of Thimme Gowda's death. The objection was upheld and I. A. VI was dismissed. On appeal by the petitioners who had filed I. A. VI, the learned District Judge on a consideration of the evidence found that death of Thimme Gowda had occurred within 90 days prior to the petition and therefore allowed the application. The correctness of this order is impugned on the ground that no appeal by against the order of the learned Subordinate Judge on I. A. No. VI as it was filed under Order 22, Rule 3, C.P.C., and the order of the District Judge must be held to be without jurisdiction. There is no indication in the order of the learned District Judge of either a doubt or contention regarding maintainability of the appeal. Nevertheless it is urged that the order has no validity for want of jurisdiction and should not be allowed to stand. The appeal must be held to be not competent if it depends on the provisions of the Civil Procedure Code as the order on I. A. No. VI does not fall within the category of the orders stated in the Code to be appealable and the Pull Bench decision in -- 'Venkatakrishna Beddy v. Krishna Reddy'; AIR 1926 Mad 586 (A) makes this clear.

(3.) The rules in Order 22 relate to substitution of parties in suits and appeals or other proceedings arising from suits. The application now for consideration was filed in the course of insolvency proceedings governed by special provisions of the Mysore Insolvency Act and the Civil Procedure Code can apply only to the extent required or permitted by these. The argument on petitioners' behalf that Section 5 of the Act attracts all the provisions of the Civil Procedure cannot be accepted as it states: