GOPALAN Vs. KUNHU VELAN

JUDGEMENT

(1.) These eight petitions arise out of the same proceeding in insolvency.

(2.) The adjudication was on a petition by the debtor, and, in due course, four of the creditors named in the petition filed proofs before the receiver. The present revision petitioner, who is undisputedly a creditor, filed objections before the receiver to the proofs submitted by these four creditors, the present respondents. But because he did not appear to prosecute his objections, the receiver ignored them and included the four respondent creditors in the schedule framed by him under S.33 of the Provincial Insolvency Act read with the delegation made under S.80. Thereupon the petitioner creditor filed eight applications before the Insolvency court, namely, the Sub-Court, Palghat, for the purpose of removing the names of the four respondent creditors from the schedule -- four under S.50 and four under S.68 of the Act. The learned Subordinate Judge after due enquiry found that the debts alleged to be due to the respondent creditors were fictitious and, allowing the four applications filed by the petitioner creditor under S.50, he directed that the entries in the schedule in respect of these debts be expunged. Although the proper order to pass on this finding would have been to allow also the four applications under S.68 with the same result, namely, the deletion of the entries, the learned Subordinate Judge dismissed those applications as unnecessary. The respondent creditors appealed to the District Court under S.75 against the order allowing the four applications under S.50. But, obviously, since he had got what he wanted, the petitioner creditor did not appeal against the dismissal of the four applications under S.68. The learned District Judge, without going into the merits, allowed the appeals and dismissed the applications brought under S.50, upholding the preliminary objection taken by the respondent creditors that those applications did not lie, in view of the fact that there was no refusal by the receiver to interfere in the matter so as to give the petitioner creditor the right to apply under sub-s.(2) of S.50. He seems to have thought that the proper remedy for the petitioner creditor was to apply under S.68, as indeed he had done, but, since the petitioner creditor had not appealed against the dismissal of his applications under that section, the learned District Judge found himself powerless to help him. The result is that, although the finding of the Insolvency court is that the debts in question are fictitious debts, and this finding has not been upset in appeal, the debts in question are to figure in the schedule and the respondent creditors are to get dividends as if they were genuine creditors. Against the order of the District Judge allowing the appeals of the respondent creditors and dismissing the applications brought by the petitioner creditor under S.50 of the Act, the petitioner creditor has instituted C. R. P. Nos. 441 to 444 of 1957 ; and against the order of the Sub-Judge dismissing his applications under S.68 of the Act, he has instituted C. R. P. Nos. 434 to 436 and 445 of 1957.

(3.) If indeed the applications brought by the petitioner creditor under S.50 of the Act were not maintainable under sub-s.(2) thereof, I would have been inclined to interfere in revision against the dismissal of the applications brought by him under S.68 of the Act, although he could have appealed against that dismissal to the District Court, but failed to do so. No appeal against that dismissal lies to this court, and therefore the express prohibition in S.115 of the Civil Procedure Code contained in the words "and in which no appeal lies thereto" does not apply. Having regard to the circumstances already mentioned, this, it seems to me, would have been a fit case for departing from the ordinary rule, and interfering in revision, although a remedy lay by way of appeal to some other court, but was not availed of.