NOOR MOHAMMAD KHAN Vs. RASHID AHMAD

JUDGEMENT

(1.) This is a revision under Section 75 of the Provincial Insolvency Act. hereafter 'the Act'. The brief facts are these. The applicant Noor Moham-mad Khan was adjudged as insolvent by order dated 21-1-1973 and one year's time was specified for making an application for discharge. In pursuance of that order the applicant made such an application under Section 41 (1) of the Act. An ex parte order was passed on that application on 2-11-1976 discharging the applicant. On 30-11-1976 Rashid Ahmad, opposite party No. 1, filed an application under Order 9, Rule 13 C. P. C. for the setting aside of that order. He filed an affidavit in support of that application. The ground taken by him was that his brother had met with an accident at Delhi and in that connection he had gone to Delhi and had not been able to appear on the date fixed. That application was contested by the applicant and he also filed a counter-affidavit. He disputed that Rashid Abmad's brother had met with any accident and asserted that on the date fixed i. e. on 2nd November, 1976, Rashid Ahmad was present.

(2.) The court of first instance allowed the application of Rashid Ahmad and set aside the order dated 2nd November, 1976. Aggrieved the applicant filed an appeal under Section 75 of the Act which came up for hearing before the V Additional District Judge, Moradabad. The learned Additional District Judge took the view that since the trial court had allowed the application made under Order 9. Rule 13 C. P. C. no appeal lay against that order under Order 43, C. P. C. In his opinion Section 75 of the Act was not applicable to the case and the remedy of the applicant was that he could have moved a revision application under Section 115 C. P. C. before the High Court. The lower appellate Court considered the matter on merits as well and concurred with the view which had been taken by the trial court. In the result, the appeal was dismissed. The present revision has been directed against this order.

(3.) The first submission made before me on behalf of the applicant was that his appeal under Section 75 of the Act was clearly maintainable and the view taken by the lower appellate Court is erroneous. After hearing counsel for parties I am not inclined to agree with this contention. Section 45 of the Act provides for general powers of Courts. In so far as it is relevant for the present purpose it reads :-