VINODCHANDRA MOTILAL THAKKER Vs. MANILAL CHHOTALAL

JUDGEMENT

(1.) The order passed by the learned Judge of Court No. 10 of the City Civil Court at Ahmedabad on 23rd January 1977 is under challenge in this appeal at the instance of the original judgment-creditor under Section 75 of the Provincial Insolvency Act, 1920 ('the Act' for brief).

(2.) The litigation has a chequered history behind it. The predecessor-in-title of the present appellants, named, Manilal Chhotalal Dhariya ('the judgment-creditor' for convenice) had obtained a decree in the sum of Rs. 4,070 / with interest and costs in Civil Suit No. 677 of 1968 against the present respondent ('the insolvent' for convenince). The judgment-creditor filed an execution application for execution of the aforesaid decree by arrest and detention of the insolvent in the civil prison. It came to be registered as Civil Darkhast No. 207 of 1968. In that Darkhast the insolvent was arrested under warrant and detained in the civil prison of 23rd and 24th September 1971. He thereafter made one insolvency petition in the City Civil Court at Ahmedabad for his declaration as an insolvent. It came to be registered as Insolvency Petition No. 17 of 1971. He thereafter obtained his release from the civil prison by giving the required security under Section 23 of the Act. On 8th October 1973 the adjudcation order was passed against the insolvent in Insolvency Petition No. 17 of 1971 and all his properties came to be vested in the Official Receiver. On his examination by the Official Receiver on 3rd April 1974, the insolvent declared that he had no properties other than those mentioned in his Inslovency Petition and inventory. Later on it was found that he possessed of some three properties and he did not declare those properties to be his in his Insolvency Petition; The Official Receiver thereupon submitted his report on 15th December 1969 for prosecution of the insolvent under the relevant provisions contained in Section 69 of the Act. It came to be taken on record as Exh. 66 in Insolvency Petition No. 17 of 1971. The matter appears to have been assigned to Court No. 8 of the City Civil Court for hearing. By the order passed by the learned Judge thereof on 27th February 1976, a preliminary inquiry contemplated under Section 70 of the Act was ordered by issuing notice to the affected parties. The matter appears to have been assigned to Court No. 10 of the City Civil Court thereafter. It appears that the learned Judge thereof, by his order passed on 15th September 1976 below Exh. 66 in Insolvency Petition No. 17 of 1971, came to the prima facie conclusion that the insolvent was guilty of the offences committed by him under the relevant provisions contained in Section 69 of the Act. A complaint was therefore ordered to be filed against him. It appears that the aforesaid order passed by the learned Judge of Court No. 10 of the City Civil Court at Ahmedabad on 15th September 1976 was suo motu reviewed by the very learned Judge by his order passed on 23rd January 1977. It appears that no notice whatsoever was caused to be issued to any one before the aforesaid order passed by the learned Trial Judge on 15th September 1976 was set aside on its review. It appears that in the meantime the original judgment-creditor had died and his heirs and legal representatives were brought on record in his place in Insolvency Petition No. 17 of 1971. They were aggrieved by the aforesaid review decision of the learned Judge of Court No. 10 of the City Civil Court at Ahmedabad. They have therefore preferred this appeal before this Court under Section 75 of the Act and have questioned the legality and validity of the impugned order passed by the learned Trial Judge on 23rd January 1977.

(3.) Shri Patel for the appellants has urged that the learned Trial Judge had no jurisdiction suo motu to review his order of 15th September 1976 below Exh. 66 in Insolvency Petition No. 17 of 1971, and in any case, the said order could not have been reviewed without issuing any notice to the present appellant. Shri Bhatt for the respondent has on the other hand submitted that the learned Trial Judge has under the impugned order corrected his error or mistake and it was within his inherent jurisdiction to do so. According to Shri Bhatt for the respondent, exercise of inherent jurisdiction would not require any notice to be served when the error is sought to be corrected.