RAGHAVAN Vs. MATHEW

JUDGEMENT

(1.) This is a matter arising out of a proceeding under S. 16 of the Travancore Debt Relief Act (Acts II and III of 1116). The 7th counter petitioner the appellant before us is an unsecured creditor. The respondent is a secured creditor who has obtained a decree in O.S. 1360 of 1110. The court below by its order dated 3.4.1950 fixed the amount due to the respondent at Rs. 4135-7-0. The appeal is directed against this order.

(2.) The learned Advocate for the respondent raised a preliminary objection that no appeal lies. Act II of 1116 does not provide for any appeal from orders of this nature. Therefore there is considerable force in the objection taken by the learned Counsel. The learned Advocate for the appellant however prays that the appeal may be treated as a revision petition. We think that this prayer may be granted. The appeal is therefore treated as a revision petition.

(3.) The main point urged by the appellant is that the court below overlooked the provisions of S.12 of the Debt Relief Act in fixing the amount due to the 1st counter petitioner. But it is contended for the respondent that the appellant is precluded from raising the point in appeal as he is concluded by the admission made by him in the lower court. The learned Advocate for the appellant argues that the observation in the order of the learned Judge that the amount claimed by the 1st counter petitioner is not objected to by the other parties is not correct. It appears from the records that all that the learned Advocates for counter petitioners 2, 5, 6, 7 and 11 stated in writing was that they had no objection to the amount due to the 1st counter petitioner being paid to him. They did not say what that amount was. Nor did they give up the right to have that amount determined in due course of law. No admission as to the amount due to the 1st counter petitioner can therefore be drawn from the statement in question. Hence the lower court was wrong in having fixed the amount without determining the same through proper investigation as if the claim put forward by the first respondent was not objected to by the other parties.