NAMDEO VISHWANATH Vs. UMBAOSINGH SADHURAM

JUDGEMENT

(1.) THIS is a creditor's appeal arising out of a petition filed by a debtor for adjudicating himself insolvent under Section 10 of the Provincial Insolvency Act, 1920. At the outset, it must be made clear that this matter is required to be treated as a revision application under law and it is directed that it should be treated as a revision application and an appropriate number be given to it. I would point out that the petitioner had approached this Court by way of a revision application and it is also numbered as such. However, on the view taken by the office, the revision application was renumbered as a second appeal. The present proceeding would be covered by the provisions of Sub -section (1) of Section 75 of the Provincial Insolvency Act, 1920, if at all it should be covered by any provisions of the Provincial Insolvency Act. If the present petitioner -creditor could be held a person aggrieved, then his remedy against the trial Court's order would be in the form of appeal to the District Court and thereafter by way of a revision to this Court under the first proviso to Sub -section (1) of Section 75. Under these circumstances, this matter is directed to be renumbered as a revision application.

(2.) THE facts giving rise to this revision application are these: The debtor one upraising applied on October 13, 1960, for being adjudicated insolvent. On October 26, 1960 the petition was admitted. On April 26, 1961, the petition came to be dismissed for non -payment of the process fees by the debtor. It was again restored to file on June 14, 1961. While the petition was pending in this manner respondent No. 3 one Shivshankarsing proceeded by way of an execution against the property of the debtor under a decree obtained in Civil Suit No. 87 -A of 1959. It was a decree for Rs. 10,000. He attached the house property of the debtor. As the insolvent had put in an application for adjudication, he also informed the executing Court of this fact on December 27, 1960. Inspite of this information being communicated to Shivshankarsing as well as the executing Court, the auction sale was knocked down in favour of the creditor, Shivshankarsing, on December 29, 1960. He paid one -fourth sale price forthwith. On January 6, 1961, Shivshankarsing, as purchaser applied for adjusting the balance of the three -fourth sale price towards his decretal debts. This prayer was granted on January 13, 1961. He also obtained a sale certificate and applied for possession on August 14, 1962.

(3.) PRESENT revision petitioner was shown as a creditor in the list of creditors attached to the petition of the debtor. He had not participated in the public enquiry though he received a notice. He filed an appeal against the order rejecting the petition of the debtor. It was admitted as an appeal and was heard as such. However, the learned Assistant Judge while making judgment in that appeal held that the appeal itself was incompetent. The creditor who was merely as a creditor in the list but had not participated in the enquiry could not be treated as a person who was aggrieved by the order. He was at best a person who was disappointed with the dismissal of the debtor's petition. Even though he held that no appeal lay, in order to obviate a remand, he also heard the matter on merits, and on facts, and came to a conclusion that the trial Court was justified in its order. The debtor had not made out a prima facie case of his inability to pay the debts. The appeal was, therefore, dismissed. Being aggrieved, this revision application has been filed.