G H YUSUF SAIT Vs. S RAMAMURTHY

JUDGEMENT

(1.) THIS revision proceeding involves a question of some interest and importance with regard to the degree to which a Court exercising powers in insolvency could review or set aside its own order, either under powers vested in the Court by virtue of Section 5 of (he Provincial Insolvency Act (V of 1920), read with Section 114, C. P. Code and Order 47, Rule I, C. P. Code, or by virtue of its inherent powers under Section 151, C. P. Code. As I shall show presently, there is the authority of the judgment of a learned Judge of this Court in Chandramouleswaran v. Krishnaswami Naidu, in an instance that was very similar upon the facts, for the affirmative reply to the question with regard to the power of the Court. But the matter is not free from difficulty, particularly in view of certain authorities that have been placed before me by learned counsel for the petitioner. Hence I shall first particularise the essential facts which have led up to the revision proceeding.

(2.) A certain petitioning creditor, one Fred, J. Dyas, filed I. P. No. 5 of 1960 before the learned Subordinate Judge of Nilgiris at Ootacamund, to have the adjudication in insolvency of the present revision petitioner (insolvent ). The act of insolvency alleged was that on 7th October 1959, the insolvent had executed an alleged deed of settlement, by virtue of which he had fraudulenly gifted away or transferred all his properties, worth over Rs. 1 1/2 lakhs in favour of his wife. The petition, which was filed on 23rd December 1959 further alleged that the insolvent was indebted to various persons including the petitioning creditor himself, and the present respondent in the revision proceeding. The petition was numbered as I. P. No. 5 of 1960 on 11th August 1960. The insolvency was notified in the Gazette as per orders of Court, and the insolvency petition was posted on 5th October 1960 for return of publication in the Fort St. George Gazette and notices duly served.

(3.) ON 3rd October 1960, a joint memorandum was filed by the petitioning creditor and the insolvent or debtor, to the effect that the matter between them had been settled outside Court, and hence that the Court might be pleased to record the settlement and to dismiss the proceeding in insolvency. Thereupon, the hearing of the petition was advanced to that date and it was dismissed, recording the compromise, by the learned Subordinate Judge.