SARAMMA Vs. KANIPPAYYUR H P COMPANY

JUDGEMENT

(1.) Whether the jurisdiction of the civil court is ousted by the provisions contained under S.79 of The Insolvency Act II of 1956 in the matter of challenge against an order passed in an insolvency proceedings is the question coming up for decision in this civil revision petition.

(2.) Petitioner in I. A.2794/91, appellant in C.M.A. 101/91 and plaintiff in O.S. 996/91 is the revision petitioner. A settlement deed No.2136/1985 of the Kunnamkulam Sub Registry had been executed in favour of the petitioner by her husband settling on her the plaint schedule properties. This settlement deed had been annulled at the instance of the 1st respondent in an Insolvency Proceedings No. 13 of 1985 initiated against the petitioner's husband under order dated 16-8-91. The petitioner contending that the above order is not binding on her as she was not a party in I.P. 13/85 filed the present suit for injunction preventing respondent No. l from taking any step in I.P. 13/ 85 of Sub Court, Thrissur for dispossessing the petitioner from the plaint schedule property. The interim relief sought in I.A.2794/91 is also for the same effect. The courts below dismissed the interim application on the ground that if the petitioner is aggrieved by any order passed in I.P. 13/85, she should challenge the same by filing an appeal under S.79 of the Insolvency Act and not by filing a separate suit.

(3.) It was contended on behalf of the petitioner that the remedy by way of a civil suit available to the petitioner is not barred by any provision of the Insolvency Act and therefore the courts below have committed a grave error in not granting her interim relief on the ground that her remedy is by way of filing an appeal under S.79 of the Insolvency Act. It is true that there is no specific provision in the Insolvency Act by which the jurisdiction of the civil court is ousted. But Insolvency Act is a special statute. Rights and liabilities are created by the provisions of the above statute and special procedure is also provided therein. It is not that all the civil courts having jurisdiction to entertain proceedings under the Insolvency Act. S.3 provides that the District Courts shall be the Courts having jurisdiction under this Act. But it is open to the Government by notification in the Gazette, invest any Court subordinate to a District Court with jurisdiction in any class of cases and any Court so invested shall within the local limits of its jurisdiction have concurrent jurisdiction with the District Court under the Act. Provisions contained in S.47 shows that the court having insolvency jurisdiction has the power to decide all questions arising in insolvency. Detailed provisions regarding the appeal to be filed are seen under S.79 of the Act which reads as follows: