VISHWANATH NAGANATH ANDAGE Vs. MAHADEO SULTANAPPA WAGHMODE

JUDGEMENT

(1.) THIS application is filed by the petitioning creditor against the order of the learned Insolvency Judge who allowed the application of opponent No. 2 for restoration of his application under Section 4 of the Provincial Insolvency Act for a declaration that the moveable property which was seized by the Receiver in Insolvency from his possession was of his ownership and that accordingly, it should be returned to him. This application was made on 1st November, 1958, that is, on the same day on which the Receiver had taken possession of the property. For about a year arid five months after the presentation of this application no action was taken by the Insolvency Court thereon. In the meantime, it appears the Receiver had made his report in regard to different aspects of the insolvency proceedings. Among other things, he had prayed in his report that the application made by opponent No. 2 being Ex. 19 in the case should be taken up for hearing and a date might be fixed for the purpose. This report by the Receiver was made on 12th January I960. Thereafter, the insolvency proceedings were adjourned on one or two occasions and they were resumed once again on 22nd April 1960. On that day the insolvent remained absent, and his pleader also was not present in Court. The petitioning creditor, however, was present with his pleader. The Court finding the insolvent absent from the Court on that day, annulled the order of adjudication, but at the same time it also passed an order that the Receiver should continue to administer the estate of the insolvent. Among the items recorded in the Roznama of this date, one was that Ex. 19 being the application by opponent No. 2 was fixed for hearing on 14th June 1960. The Roznama of the day, however, did not show that either opponent No. 2 or his pleader was present in Court on that day. On 14th June 1960 when application Ex. 19 was taken up for hearing and final disposal by the Court, opponent No. 2 was not present nor was his pleader and, therefore, the Court by an order rejected the same. An application for setting aside this order and for restoration of that application was made by opponent No. 2 on 14th October 1960. This application was resisted, not by the Receiver in insolvency but by the petitioning creditor, obviously because, if the application was restored and also allowed, the moveable property which was seized by the Receiver would be returned to opponent No. 2 and to that extent the interest of the petitioning creditor would naturally suffer. The resistance, to the application was based upon the ground that since the application for restoration was not made within 30 days from the date of the order dismissing the application for default, it was barred by time. It may be noted, however, that the application for restoration was based upon the ground that opponent No. 2 could not remain present at the date of the hearing of the application Ex. 19 on account of the fact that no notice of the date of hearing was given to him by the Court, and that when he came to know that the order of adjudication was annulled, he thought that his application had automatically become superfluous and that the property seized from him by the Receiver would in due course be returned to him. Opponent No. 2 also gave evidence in support of this application, and the petitioning creditor, too, gave evidence in support of his opposition. The insolvency Court considered this evidence as also the arguments advanced on behalf of both the parties to the application and held that the application was clearly barred by time if it was to be regarded as one falling under Rule 9 of Order 9 of the Civil Procedure Code and governed by Article 163 of the Limitation Act. It further held that in the circumstances of the case, it was necessary that the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code should be exercised and accordingly, the application for restoration was allowed. It is against this order of the insolvency Court that the petitioning Creditor has Sled the present revision application in this Court.

(2.) IN support of this application, it was urged by Mr. Walawalkar that inasmuch as the application Ex. 19 fell within the purview of Section 4 of the Provincial Insolvency Act and all the provisions of the Civil Procedure Code applied to such application as if it was a suit by virtue of the provisions of Section 5 of that Act, the application for restoration of Ex. 19 was one falling under Order 9, Rule 9 of the Civil Procedure Code, and that, therefore, since it was filed more than 30 days after the date of the order rejecting Ex. 19 it was barred under Article 163 of the Limitation Act. In my opinion, however, unless and until it is shown on the record of the case either in the form of an endorsement on the Ex. 19 itself or an entry in the Roznama relating to the case, that opponent No. 2 or his pleader or both were present in Court on 22nd April 1960 when the date for hearing of the application Ex. 19 was fixed by the Court, the default in appearance on the date of the hearing of the application on the part of opponent No. 2 could not be said to be one which would attract the provisions of Order 9, Rule 9 or of Article 163 of the Limitation Act. Rule 9 of Order 9 contemplates a case where the plaintiff is aware, as is almost invariably the case, of the date of hearing of the suit and yet for some reason-or the other he fails to appear in Court on that date. If in that event, the Court dismisses the suit, an application for restoration of the suit may be made by the plaintiff under that Rule. But where the plaintiff is not aware of the date of hearing of the suit as in the case of a suit adjourned sine die and suddenly taken up for hearing and final disposal without giving previous intimation to the parties thereto, and the suit is dismissed for his default in appearing in Court on such date, then, in my opinion, any application that might be made by him for restoration of the suit would not fall within the purview of Order 9, Rule 9. In such a case, if the Court is satisfied that the plaintiff was not at all aware of the date of hearing of his suit and the suit was dismissed in his absence, the Court would, in exercise of its inherent jurisdiction under Section 151 of the Civil Procedure Code, entertain and grant an application by such plaintiff for restoration of the suit and order the suit to be restored. In the present case, the Court was satisfied that opponent No. 2 had no notice of the date of hearing of his-application Ex. 19 which was fixed on 22nd April 1960 and that, therefore, he could not remain present in Court on the date when that application was disposed of. The learned Judge accordingly allowed the application for restoration of the application Ex. 19 in exercise of his jurisdiction under Section 151 of the Civil Procedure Code although that application was made more than 30 days after the order dismissing the application Ex. 19 was passed.

(3.) I specifically asked Mr. Walawalkar to point out any endorsement or entry anywhere on the record of the case showing that either opponent No. 2 or his pleader was present in Court on 22nd April 1960 on which date the date of hearing of the application Ex. 19 was fixed by the Court. Mr. Walawalkar after making a valiant effort in that direction frankly and quite fairly stated that ha could not find any such endorsement or entry. Accordingly, there is no doubt that opponent No. 2 bad no notice whatever of the date of the hearing of the application Ex. 19. In such cases, it is the duty of the Court to give notice to the applicant concerned. The Court having failed in that duty in the present case, obviously, opponent No. 2 could not be visited with any penal consequences following upon his default in appearing at the hearing of his application Ex. 19. In my opinion, the order passed by the learned Judge in the Court below in the circumstances of the case was perfectly justified. I see no reason to interfere with that order. The application is accordingly dismissed and the rule is discharged with costs, only in favour of Opponent No. 2.