PUSHKARAN Vs. RAMAKRISHNAN NAIR

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Alleppy rejecting an application for the review of an order dismissing a creditor's petition to adjudge a debtor insolvent.

(2.) On 7.3.1124 one Ramakrishnan Nair filed an application (I.P. No. 6 of 1124) before the lower court seeking to adjudicate one Krishna Pillai (Respondent 2 here, and counter petitioner No. 1 before the lower court) an insolvent alleging that he had committed an act of insolvency by transferring all his properties to the 2nd counter petitioner thereto (Respondent 3) for a nominal, if not for no consideration. The said transfer was on 26.12.1123. On the very day of the presentation of the petition the court posted it to 16.3.1124 to cure certain alleged defects. Really there were no defects. The petition satisfied all the requirements of a valid petition by a creditor to adjudicate a debtor an insolvent. As the court did not sit on 16.3.1124 the petition was adjourned to 23.3.1124. This adjournment was also for curing defects. Before that date, on 21.3.1124, the petitioner filed another petition stating that as he had made a settlement with his debtor there was no need to prosecute the petition and that it may therefore be struck off the file. Apparently nothing was done on 23.3.1124 with reference to the main petition to which date it stood posted for curing defects. The petition was not even adjourned to a subsequent date. The second application was taken up for orders on 30.3.1124 and the court passed on it the order "Struck, off". No order whatever was made on the main petition. Evidently the order "struck off" meant that the main petition i.e., I.P. No. 6 of 1124 was removed from the file of the court. A contrary view would mean that the main petition still remains on the file of the lower court undisposed of. The progress diary of the case and subsequent events clearly show that all concerned took the order on the second petition as one dismissing the insolvency petition itself.

(3.) On 19.4.1124 the present appellant filed the application giving rise to this appeal seeking a review of the order dismissing the insolvency petition and to substitute him as the petitioning creditor in place of the original petitioner. The petition and the affidavit in support thereof disclose that the appellant is a creditor of Krishna Pillai and that the debt due to him exceeded the sum of Rs. 500/-. The learned Judge who disposed of I.P. No. 6 of 1124 directed notice of the application to all the parties. The petition finally came up for hearing before that Judge's successor in office and he dismissed it on two grounds. In the first place it was stated that the Travancore Insolvency Act, VIII of 1108, contained no provision for a review of an order passed by a court in the exercise of its insolvency jurisdiction. Secondly, the learned Judge said the substitution under S.16 of the Act VIII of 1108 contemplated a petition that is alive and is not dead, a petition that is pending and has not been dismissed.