S DAMODARAN PILLAI Vs. K NANTHEDU BAVA

JUDGEMENT

(1.) Petitioner in insolvency petition 1/87 on the file of Munsiffs Court, Mavelikkara is the appellant in this miscellaneous second appeal. The appellant as the judgment debtor in O.S.57/85 of Munsiffs Court, Adoor, was liable to pay substantial amount decree-debt and as he was unable to pay his debt he filed the application. The Munsiff adjudicated the petitioner as insolvent. The decree holder in O.S.57/85, who was made the only respondent in the insolvency proceedings, challenged the order passed by the Munsiff, in A.S.166/88. Additional District Judge, Mavelikkara allowed the appeal and the order passed by the Munsiff was set aside. The reason for setting aside the order was that under S.10 of the Insolvency Act the petition could be filed only if the petitioner is unable to pay his debts and for a single debt the petition is not maintainable. This finding is challenged by the appellant herein.

(2.) In order to appreciate the rival contentions it is necessary to understand the scope of S.10 of the Insolvency Act, which reads:

(3.) In the instant case after the adjudication order the petitioner filed an application for discharge. He did not take proper steps to proceed with the discharge application. Therefore, the adjudication order passed by the Munsiff has become cancelled. Under S.42 of the Insolvency Act after the order of adjudication the debtor within the period prescribed by the court shall apply to the Cowl for an order of discharge. Such an application was filed by the petitioner appellant. However, he did not prosecute that petition properly and the application for discharge was dismissed. So the order of adjudication by the Munsiff has also become ineffective. As the order passed by the Munsiff is no longer in force, I do not think that it is necessary to allow this appeal and revive the order of the Munsiff.