D HEERABAI Vs. OFFICIAL RECEIVER KRISHNA

JUDGEMENT

(1.) This revision petition is directed against the orders in I. A. No. 1900 of 1960 in I. P. No. 29 of 1955 on the file of the Court of the Subordinate Judge, Vijayawada, which as the insolvency Court it had to deal with the Game.

(2.) The short question, which arose for decision by the lower Court, is whether this application, namely, 1. A. No. 1900 of 1960, is exclusively an appeal under Section 68 of the Provincial Insolvency Act and as such cannot be filed beyond the period of 21 days, after the sale by the Official Receiver of certain properties as conditioned by the proviso to that section.

(3.) The determination of this question, it should be observed, is mainly dependent upon the factors which have to be taken into consideration by any insolvency Court whether the act complained of had been a matter which the Official Receiver had power to decide upon and which act could therefore be legitimately complained of and taken to the Court for further adjudication. This question would indeed be one of fact depending upon not only points raised In the application filed before the insolvency Court, but also the steps taken by the person who complains to the Court about the act of the Official Receiver; and also the further question whether in doing so that petition could be said to be an appeal by the aggrieved party so as to fall under Section 68. The approach, therefore, in deciding a question of this kind by the lower Court should have been by its application to these cardinal questions before arriving at any conclusion, That a particular petition or application is an appeal under Section 68 or merely a petition under Section 4 of the Provincial Insolvency Act. The Importance to be attached to the kind of approach In all these cases assumes greater prominence especially because of the significance to be given to the mandatory provision relating to the period of limitation contained in the proviso to Section 68. But it is unfortunate that the Insolvency Court, namely, the learned Subordinate Judge, Vijayawada, had omitted to bear in mind the points of difference or distinction obtaining between the various applications falling under the two different sections, namely Section 4 and Section 68, but went on to decide the case under revision rather on hazy notions. On a perusal of the orders of the learned Subordinate Judge, It is clear, that while passing orders in I. A. No. 1639 of 1960, which was filed for condoning the delay in filing I. A. No. 1900 of 1960, a certain assumption has been made that I. A. No. 1900 of 1960 falls under Section 68 and therefore the ruling in Rajagopalam v. Official Receiver, AIR 1958 Andh Pra 426, Is applicable. In this view, the Insolvency Court held that there is no power in the Court to condone the delay by application of the provisions of Section 5 of the Limitation Act. Thereafter, while dealing with I. A. No. 1899 of 1960, the obsession that the petition for condonation has been dismissed should necessitate the dismissal of this application also prevailed with him. This, in my view, has led the Insolvency Court to deal with matters In an unsatisfactory manner; and thereby that Court has put the cart before the horse and landed itself in a vicious circle.