ILLIYAS KHAN Vs. BHULLAN SINGH

JUDGEMENT

(1.) THIS is an appeal by a debtor from an order passed by the Insolvency Judge of Muzaffarnagar refusing to set aside an ex parte adjudication of insolvency against him.

(2.) ON an application Under Section 9 of the Provincial Insolvency Act (here -in -after referred to as the Act) by a creditor named Bhullan Singh alleging some acts of insolvency against Ilyas Khan, the debtor, the Insolvency Judge on 23 -2 -70 passed an order admitting the application and directed the notice to be issued to opposite party fixing 23 -5 -70 as the date of hearing. From the record it appears that on 15 -3 -1970 the summons were tried to be served on the debtor but he made himself scarce resulting in the summons being affixed on his house. Then on 6 -4 -1970 an application was made on behalf of the creditor for service of the summons by registered post. The learned Insolvency Judge directed it to be done. A registered envelope on record shows that it was refused by the addressee on 21 -4 -1970. Unfortunately in the order sheet of the court no mention is made of the return of the notices. On 23 -5 -1970, as the order sheet shows, the Presiding Officer, that is the Insolvency Judge, was absent. But curiously enough it is recorded that "the case called up for hearing. The opposite party is absent and the registered envelope containing the summons has been refused. In the opinion of the court service is sufficient and 4 -7 -70 be fixed for hearing". The order sheet is initialled by some Officer as "I/C In. J" probably some Officer was put in charge as Insolvency Judge for the day. When the case was taken up on 4 -7 -70 the debtor was absent and the creditor Bhullan examined himself. The learned Insolvency Judge recorded an order, "Ilyas Khan, is hereby adjudged insolvent and is given 2 years' time for discharge. His estate shall vest in the Official Receiver. Further steps in 10 days." On 14 -7 -70 an order was made for publication as required by the rules. On 11 -9 -70 an application purporting to be Under Order 9 Rule 13 of the Code of Civil Procedure, supported by an affidavit, was filed before the Insolvency Judge by Ilyas Khan, the debtor, for setting aside the order of the ex parte adjudication. It was alleged that no summons or notice were served on him either by the Process Server or by registered post and the proceedings were taken behind his back. It was further alleged that he came to know about the proceedings on hearing from the villagers after some time. This application was opposed by the creditor Bhullan Singh who in his counter affidavit alleged that the debtor had deliberately avoided service of summons by running away from the village and had refused to accept the registered letter containing the notice when presented and that he had knowledge of the order of adjudication much earlier and the application was barred by time. The learned Insolvency Judge by his order under appeal held that the notices were duly served in the eye of law on the debtor Ilyas Khan and no case was made out for setting aside the adjudication order. The application was rejected. Ilyas Khan has now come up in appeal.

(3.) THE next question is whether the service of the notice was found to be sufficient and the adjudication order dated 4 -7 -1970 was a proper order. In this connection Sri Bashir Ahmad drew my attention to Section 19 of the Provincial Insolvency Act. Sub -section (2) of Section 19 prescribes that a notice of the order Under Sub -section (1) shall be given to creditors in such manner as may be prescribed. Under the rules made by the High Court given in Appendix 17(J) of the General Rules (Civil) notice of an order fixing the date of hearing of the petition Under Section 19(2) shall in addition to or in lieu of the publication in the local official Gazette be advertised in such newspaper or newspapers as the court may direct. It was submitted that no steps were taken by the learned Insolvency Judge for publication as the application Under Section 9 of the Act was for the benefit of all the creditors. I have perused the record. There does appear to be a lacuna in the publication of notice fixing the date of hearing as required by Rule 5. The order adjudicating Ilyas Khan, therefore, would suffer from a defect of procedure but as no such point was taken in the court below, I do not think it safe to base my decision on this question.