PERACHAKUTTY Vs. THOMCOS BANK LTD.

JUDGEMENT

(1.) I can think of at least three reasons why this petition under S.115 of the Civil Procedure Code brought by a debtor to whom the Insolvency court has declined interim protection from arrest in execution of a decree against him pending his application for adjudication, should be dismissed. In the first place I should have thought that the debtor could have appealed under S.75 of the Provincial Insolvency Act (the law that actually applies is T. C. Act II of 1956 as amended by Kerala Act XVIII of 1957, but I shall refer to the better known provisions of the Provincial Insolvency Act, the two enactments being identical in language) and that seems to me a good reason for declining to interfere in revision even if the express bar in S.115 does not apply by reason of the fact that the appeal lies, not to this court, but to the District Court. It is urged on behalf of the petitioner that I can nevertheless interfere under Article 227 of the Constitution, and leave is sought for converting the petition into one under that provision as well. But the fact that the petitioner could have appealed -- and an appeal in this case would be as adequate a remedy as an application to this court under Article 227 of the Constitution -- would be as good a reason for my refusal to entertain an application under that provision as for my refusal to entertain a petition under S.115 of the Code. That apart, as my second and third reasons will show, the case on the merits is not one deserving of any interference at all since the order passed by the insolvency court is obviously just and proper.

(2.) The second reason why this petition should be dismissed is that the insolvency court has held that the petitioner's conduct is entirely lacking in bona fides; and it has given good reasons for this conclusion. It has said that, even assuming that it had inherent power under S.5 of the Provincial Insolvency Act to grant interim protection this would not be a fit case for the exercise of that power. I find myself in complete agreement and, even if I were disposed to differ, the refusal by a court to exercise its inherent power would not be revisable under S.115 of the Code -- see Jewraj v. Albhai Kalyanbhai & Co. (AIR 1926 Calcutta page 1011); nor, I should imagine, under Article 227 of the Constitution.

(3.) The third reason is that I think the court below was right in the view that it had no power to grant the protection sought. For, as pointed out in Sinnaswami Chettiar v. Allgi Goundan ( AIR 1924 Mad. 893 ) S.31 of the Act cannot avail him since there has been no adjudication. Neither can S.23 since the debtor is not under arrest or imprisonment -- that he was previously under arrest in execution of the same decree and was released by the executing court under S.55(4) of the Civil Procedure Code is an irrelevant consideration. And, as for the inherent power under S.5 of the Act read with S.151 of the Code, I am in respectful agreement with the view taken in Ghulam Sarwar v. Guru Piara (AIR 1934 Lahore 113) that that power does not extend to ordering protection pending adjudication otherwise than under S.23 of the Act. The Act makes complete provision for the protection of insolvent debtors against whose person execution is being levelled, in the shape of S.23 pending adjudication, and in the shape of S.31 after adjudication. The inherent power of the court cannot extend to a matter for which express provision is made by the statute; and, it is also to be noticed that the power under S.5 is to be exercised subject to the provisions of the Act. When the Act says in S.23 that, pending adjudication, a debtor may be released if he is under arrest or imprisonment in execution of a decree, it implies that protection cannot be afforded in anticipation of arrest or imprisonment. The decision in Abdul Razak v. Basiruddin Ahmed ((1910) 14 CWN 586) which was followed without any discussion in Nallagatti v. Ramana ( AIR 1925 Mad. 170 ) was under the provisions of the Insolvency Act of 1907 where there was no provision corresponding to S.23 of the present Act providing for relief pending adjudication, so that it could be said that in a fit case relief could be afforded by the court in exercise of its inherent powers since the matter was one regarding which the statute was silent. But, as I have already explained, in the face of S.23 of the Act I do not think that the court can, in exercise of its inherent powers, give a relief denied by that section. With great respect I am unable to follow the decision in Nallagatti v. Ramana (AIR 1925 Madras 170).