SUPREME FINANCE CORPORATION Vs. GEORGE

JUDGEMENT

(1.) Petitioners in I. A. 3965 of 1998 in IP. 2/89 and 3/89 of the Principal Sub Court, Kottayam are the Revision Petitioners. The above mentioned I. A. was filed by the 5th respondent in IP.2/89 and 3/89 for and on behalf of other respondents under S.114 and 151 of the Code of Civil Procedure praying to review the order dated 2/11/1998 passed in the cheque application. Review Petition was allowed by the Sub Court and the order passed in the cheque application dated 2/11/1998 was reviewed and the application was dismissed. Aggrieved by the same first respondent in the IA. who is the first respondent herein, filed CMA. 25 of 1999 before the Additional District Judge, Kottayam. Appeal was allowed and the appellant was allowed to withdraw the amount in deposit on filing a fresh cheque application. Aggrieved by the said order this Revision Petition has been preferred.

(2.) Sri. P. C. Chacko, counsel appearing for the respondents raised a preliminary objection that the CRP filed under S.115 of the Code of Civil Procedure is not maintainable against an order passed by the insolvency court in exercise of the powers under S.4(1) of the Insolvency Act, 1955. Counsel submitted that the first respondent herein had filed an appeal before the District Court under S.79 of the Insolvency Act read with O.43 R.(1)(w) of C.P.C. and that order can be challenged only by way of an appeal before the High Court under second proviso to sub-s.(1) of S.79 of the Insolvency Act and the High Court could entertain such an appeal in any of the grounds mentioned in sub-s.(1) of S.100 of the Code of Civil Procedure.

(3.) Counsel appearing for the revision petitioner Sri. John Joseph Vettikad on the other hand, contended that since no appeal was preferred under S.79 of the Insolvency Act and also invoking the provisions of O.43 R.(1) CPC this revision under S.115 of the CPC is maintainable. Counsel submitted that in any view, since the matter is pending before this court for the last 5 years the CRP can be entertained.