K D NAGAPPA Vs. SANNKKA

JUDGEMENT

(1.) In this revision the sole but important point that arises for determination is as to whether a single creditor can levy the insolvency proceedings against the debtor. The relevant facts in brief are: the petitioner herein is the husband of the respondent. The respondent filed a petition under section 9 of the provincial Insolvency Act, 1920 against the petitioner herein to adjudge him as insolvent. She had filed earlier a petition in M.C. 11/66 before the judicial first class Magistrate, Adoni, claiming maintenance for here self and her minor daughter and the same was allowed by his order dated 17-2-1967 fixing maintenance amount of Rs. 60.00 and Rs. 20.00 per month to herself and her minor daughter respectively. In spite of repeated demands, the petitioner did not pay and consequently the respondent had to resort to steps for the realization of the amount for which the petitioner was sent to jail. The petitioner also in order to defeat the rights of the respondent and her minor daughter alienated all his lands on 11-5-1967 for a consideration of Rs. 6,500.00 in favour of his mother sister and the maternal aunt. He also aliented two residential houses to them. All these transactions were nominal and were intended to defeat the rights of the respondent. It is also quite apparent from the nature of the transactions as they were made only subsequent to the maintenance amount was ordered by the Court. Thus, the petitioner has committed acts of insolvency. Therefore he is liable to pay a sum of Rs. 1, 500.00 to the respondent and her minor daughter towards maintenance. Hence the petition by the respondent herein for adjudicating the petitioner herein as insolvent be ordered. The petitioner resisted this stating that the respondent instituted various cases against the petitioner and in order to resist the same the petitioner had to attend various courts frequently and so he could not cultivate the lands, and so for all these reasons the petitioner had to sell the properties in order to discharge the same. Further the respondent is not a creditor within the meaning of section 9 of the provincial Insolvency Act and inasmuch as the petitioner underwent imprisonment for a period of one month due to his failure to pay maintenance amount, the obligation is discharged and therefore the respondent is not entitled to fall back upon the claim. The 1st Court allowed the petition which was also affirmed by the appellate Court. Hence this revision petition.

(2.) The sole point that is canvassed by the learned counsel for the petitioner is that the single creditor cannot successfully maintain insolvency petition against the debtor for which he relied upon the following decisions In sanjeevi Reddy v. Elappa reddy, (1966) 2 Andh WR 93: (AIR 1967 Andh pra 243 at P. 245) Gopalarao Ekbote J., held:

(3.) Before answering, however the question raised herein, relevant statutory provisions may be noticed: section 6 reads as under: