A SOMASUNDARAM Vs. JETHANAND CHATRUMAL

JUDGEMENT

(1.) DEFENDANTS 1 and 2 in O. S. No. 210 of 1986, on the file of subordinate Judge, Coimbatore , are the revision petitioners.

(2.) 98 persons joined together in filing the suit against eight defendants, for the following reliefs: ". . . to pass a scheme decree: (a) Directing the defendants 1 to 6 to deliver and handover the industry, M/s. Everest Engineering Works, functioning at Cross-cut road, Coimbatore, with all its properties, assets, business, machineries, raw materials, stock-in-trade and finished materials to an administrator or a body of administrators to administer and run the same for such period till all creditors are paid in full or until it is wound up, or in the alternative. (b) To appoint an Administrator or body of Administrators from among the creditors to take an inventory of all the assets and properties of defendants 1 to 6 and take custody and possession of the same, take a full and complete accounts of M/s. Everest Engineering Works and prepare a list of creditors, sell the assets and properties of defendants 1 to 6 by public sale and distribute the sale proceeds to all the creditors according to law: (c)Directing the defendants to pay the plaintiffs the costs of the suit, and pass such and other orders as may be just and necessary and incidental to the main relief claimed above and render justice.'

(3.) LEARNED counsel for the respondents submitted that this Court is invoking the powers under Sec. 115, C. P. C. and if it is a shown that the interest of justice has been takeh into consideration by the court, the powers under Sec. 115, C. P. C. should not be involved. He further said that third parties rights are also affected after preliminary decree was passed, and if at this stage, the suit is dismissed as not maintainable, even persons who are not parties to the suit will be affected thereby. Again for mote than 11 years petitioners themselves have acquiesced to the proceedings taken by me trial court, and if at this stage, the Suit is dismissed, plaintiffs will be without any remedy. He further said that an administration suit is maintainable even against living persons, and the same could be properly entertained. LEARNED counsel further submitted that under no provision of the Insolvency Act, a civil suit is not barred even though the relief sought for in the plaint can also be taken into consideration by Insolvency court. 8 I will first consider the question whether an administrative suit is maintainable. In Nazarali v. Fazlanbibi, A. I. R. 1975 guj. 81, the court considered a similar question. In that case, their Lordships followed an earlier decision ofthe Lahore High Court reported in Sheikh Mahbub aba v. Razia Begum, A. I. R. 1950 Lah. 12. In paragraph 19 of the judgment, the court considered the entire case law on the point and held that any suit for administration is not only maintainable against the estate of a deceased person, but also against any property or estate of any person, and there is no bar under Sec. 9 of the Code held in that case thus: ' Coming to Mr. M. R. Oza's contention that O. 20, Rule 13 of the Code of Civil Procedure is partly substantive and partly procedural law and thus indicates the limited scope of an administration suit, we must say that it has no merit O. 20, Rule 13 finds its place in a particular scheme of the Civil Procedure Code. It is placed under O. 20 which provides as to how the judgments and decree are to be pronounced in different cases and what are to be the contents of various decrees and is merely procedural in character as we shall presently examine. The power to entertain an administration suit is given by Sec. 9 of the Code. Cognizance of administration suits is not barred either expressly or impliedly. Rule 13 provides merely a procedure for drawing up a decree in administration suit. Sub-rule (1) provides:' Where a suit is for an account of any property and for its due administration under the decree of the court, the court shall before passing the final decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made and giving such other directions as it thinks fit' . Sub-Rule (1) thus merely lays down a procedure which is to be followed in passing a preliminary decree in an administration suit where accounts of the property are to be taken for the due administration of the estate. The preliminary decree is to be passed before the final decree is passed and some inquiry is contemplated before passing a final decree in a suit. Sub-rule (2) provides:' In the administration by the court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of a annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent and all persons who in any such case would be entitled to be a paid out of such case would be entitled to be paid out of such property may make such claims against the same as they may respectively be entitled to by virtue of this Code' . Sub-rule (2) thus provides the procedure to be followed in the case where in an administration of the property by the court, the property proves to be insufficient for the payment of debts and liabilities of the deceased etc. It is clearly a procedural law. It cannot be said to lay down the substantive law. As observed by a Division Bench of the Lahore High Court in Sheikh Mahbub Aba v. Razia Begum, A. I. R. 1950 Lah. 12 at p. 16: ' The power to entertain an administration suit is given not by O. 20, Rule 13, but by Sec. 9 of the Code, which provides that' the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred' , and if a suit for the administration of an estate is not barred expressly or impliedly by any provisions of law, it must be entertained. It would appear that an administration suit need not necessarily relate to the estate of a deceased person, This conclusion may be a drawn from the language of sub-rule (1) of rule 13 of O. 20, which speaks of a suit for an account of any property and for its due administration under the decree of the court' without any reference to a deceased person, and the force of this language is brought out specifically in sub-rule (2) which makes a special provision for' the administration by the court of the property of any deceased person.' It has been further observed by the Lahore High Court at P. 16 of the report:' It thus seems that the distribution of the residue among the successors of a deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of the propositus, and as the distribution of the residue forms part of the administration of an estate, it clearly falls without the province of an administration suit, Even the Divine book under which the Sirajiyyah relies insists on administration before the heritage ever devolves that the property of a deceased Muslim vests in his heirs immediately after his death is considerably tempered by the injunction that the heir is entitled only to the reside after the payment of debts and legacies and necessarily involves the administration of the estate, such administration is implied in the very words of the Holy Quran and of authentic texts like the Sirajiyyah.' We are in respectful agreement with the aforesaid Lahore view. In our opinion, O. 20, Rule 13 provides merely a procedure. The forms pleadings to be found in Appendix A to the Code in Forms 41,42,43, are mere model forms and not statutory forms as was sought to be contended by Mr. Oza. A reference to O. 6, Rule 3 shows that the forms in Appendix' A' are to be used when applicable, and when they are not applicable, the forms of the like character, as nearly as may be, shall be used for all pleadings. The forms of the decrees to be found in the First Schedule in Appendix D of the code, form of preliminary decree being No. 17 and form of final decree being no,18 are also model forms It cannot be against that decree must conform to judgment. 0. 48, Rule 3 provides that' The forms given in the appendices, with such variation as the circumstances of each case may require shall be used for the purposes there in mentioned.' It is thus clear that the forms in the various appendices of the Civil procedure Code are not statutory forms. Mr. Oza was thus not right when he tried to draw upon these forms and based a contention that the forms indicated the limited nature and scope of an administration suit.'