ANANT KISHORE Vs. LILABAI

JUDGEMENT

(1.) One Mohammad Ishaque had filed an insolvency application No. 3 of 1967 against the petitioners as insolvents. That application came to be dismissed for want of prosecution on December 22. 1967 On June 10 1968 Raghubirdaval, the present respondent No. 6 made an application against the petitioners for getting them adjudicated as insolvents. That application was registered as Insolvency Application No. 6 of 1968. Even this insolvency application came to be withdrawn on March 25, 1970. Against that order of withdrawal, respondents 1 to 5 filed a Miscellaneous Civil Appeal No. 34 of 1970 in the District Court at Nagpur. This appeal was heard and disposed by the Third Extra Assistant Judge, Nagpur, On August 31, 1971 In this appeal it was the case of respondents 2 to 5 that they were to the creditors of the petitioners under a deposit receipt. They claimed that they were desirous of joining to the insolvency application No. 6 of 1968. however, the petitioning creditor in that application (respondent No. 6) received a sum of Rs. 5,800/- from the petitioners and got their insolvency application (No. 6 of 1968) withdrawn without issuing notices to the other creditors. It was claimed that the order permitting the withdrawal of the original insolvency application. No. 5 of 1968 was contrary to law and a prayer was made that the respondents 1 to 5 to be permitted to join and continue the insolvency case No. 6 of 1968.

(2.) When the appeal was filed three questions were raised by the learned Extra Assistant Judge. the main questions were (I) whether the appeal was competent (ii) whether respondents 2 to 5 have locus standi to prefer that appeal and (iii) whether the order of withdrawal was legal or not. The learned Assistant Judge held that the appeal at the instance of respondents 2 to 5 was maintainable under Section 75 of the Provincial Insolvency Act. It was also held that respondents 2 to 5 were persons aggrieved" by the decisions about the withdrawal of the original applications. The learned Assistant Judge, therefore, felt that respondents 2 to 5 had a locus standi to file an appeal. An affidavit was filed by respondents 2 to 5 before the learned Assistant Judge to show that respondents 2 to 5 were the creditors on the basis of the deposit receipt. The learned Assistant Judge held that there was prima facie evidence to show that respondents 2 to 5 were the creditors. He, therefore allowed the appeal and set aside the order of withdrawal and remanded the matter back to the trial Court for proceeding further in accordance with law. The learned Assistant judge held that when the withdrawal of the application was permitted under Section 14 of the Provincial Insolvency Act was given. He, therefore, found that the order of withdrawal was illegal. While making an order, he, however, observed that the question whether the debt claimed by respondents 2 to 5 was a subsisting or not, whether it was barred by time and whether respondents 2 to 5 were in fact creditors of the petitioners, had to be decided by the trial Court. It is against that order that the present revision application was filed.

(3.) Mr. Kherdekar, the learned Advocate for the petitioners has argued that the appeal preferred by respondents 2 to 5 was not competent. He submits that respondent 2 to 5 were not parties to the original application No. 6 of 1968, and as such, they had no locus standi to file an appeal. It is difficult to accept this submission. Section 75(i) of the Provincial Insolvency Act provides: