GULABCHAND HIRALAL Vs. HAKIMCHAND CHOTHMAL

JUDGEMENT

(1.) THIS is a revisional application on behalf of the original petitioner in application Ex. 413 in Insolvency Petitions Nos. 12 and 14 of 1935. The petitioner had obtained a decree for Rupees 27,000/- in Special Suit No. 349 of 1930 against Chhaganlal Hardee in February, 1935. He then filed Insolvency Petition No. 12 of 1935 on March 14, 1935, for adjudication of the judgment- debtor Chhaganlal Hardee. Another Insolvency Petition No. 14 of 1935 was filed by other two creditors of Chhaganlal. The petitions were consolidated and by an order of adjudication dated July 30, 1936, Chhaganlal was adjudicated an insolvent. The order of adjudication provided that Chhaganlal should make an application for his discharge from insolvency within one year. This time expired on July 30, 1937. Chhaganlal's appeals against the order of adjudication were dismissed in 1938. Chhaganlal died in December in 1938. Chhaganlal died in December 1942 without making an application for his discharge. Several intervening litigations are referred to in the judgment of the trail Court and the District Court with which I am not concerned in this revision application. About 18/20 years after the death of Chhaganlal the petitioner filed the above application Ex. 413 for annulment of adjudication of Chhaganlal under the provisions of Sect. 43 (1) of the Provincial Insolvency Act (hereinafter referred to as "the Act" ). Now this section, inter alia, provides that if the debtor does not apply for an order of discharge within the period specified by the Court, the Court may annual the order of adjudication or make such order as it may think fit, and if the adjudication is so annulled, the provisions of Section 37 shall apply. The petitioner's case was that since Chhaganlal had failed to make any application within the time fixed by the above order and / or otherwise, the adjudication order must be set aside (annulled ). The trial Court held that this was a fit case in which the order of adjudication was liable to be annulled and thus granted the petition of the petitioner. Whilst annulling the adjudication it directed that the properties of the insolvent comprised in Municipal No. 2412 do vest under Section 37 in the receivers - trustees for three of the proving creditors.

(2.) SOME of the creditors of Chhaganlal who had not proved the debts due to them by Chhaganlal in the above insolvency filed Civil Appeal No. 1 of 1962 and the District Judge, Jalgaon, by his appellate order of remand dated December 31, 1962, set aside the order of the trial Court and directed that the application Ex. 13 in the appellate Court made on behalf of the receivers in insolvency on July 21, 1962, for leave to receivers to apply for discharge should be considered by the trial Court. The District Judge remanded the whole matter once again for further consideration by the trial Court. Whilst making the above order, the learned District Judge negatived the submission made on behalf of the petitioner that the creditors who had not proved their claims in insolvency had no locus standi in preferring the appeal. The learned Judge was of the view that it was open to the receivers to have the time for applying for discharge extended.

(3.) MR. Divekar for the petitioner has submitted that the learned Judge should have held that the receivers had no right to apply for extension of time to make an application for discharge and further that the appellants (in the District Court) had no locus standi to institute the appeal, because they had not proved their claims for debts in insolvency. He, therefore, submitted that the learned Judge's order should be set aside in this revisional application.