(1.) This revision arises against the judgment in Civil Misc. Appeal No.28 of 1981 filed by the Official Receiver. The respondents, the brothers of the insolvent filed an application under the Provincial Insolvency Act seeking exemption of 25 cents of land in Survey No.80/1 claiming that they have got two-thirds share therein and that share does not vest in the Official Receiver. That application was dismissed by the Insolvency Court. On appeal, the order of the lower court was reversed to the extent of Item No.1. As against this order, the present revision has been filed.
(2.) In this revision, Sri Parvathisam, learned Counsel for the Official Receiver contends that the sale was held on 19.9.1977 and the application was filed on 27.10.1977. Under section 68 of the Provincial Insolvency Act, hereinafter called "the Act", an application has got to be made within twenty one days and if it is not so filed, the court has no power to adjudicate the matter. The lower Court holding that the respondents filed I.A.No.8/1981 under section 5 of the Limitation Act to condone the delay of seventeen days in presenting the application and the Court allowed that application by order dated August, 17, 1981 and that order has become final. I am unable to agree with the learned Counsel for the petitioner. Section 4(1) postulates that subject to the provisions of this Act, the court shall have full power to decide all questions whether of title or priority, or of any nature whatsoever, and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognizance of this Court, of which the court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case. Section 68 postulates that "if the insolvent or any other creditor or any other person is aggrieved of any act or decision of the Receiver, he may apply to the court, and the court may confirm, reverse or modify the act or decision complained of and make such order as it thinks fit, provided that no application under this section shall be entertained after the expiration of twenty one days from the date of act or decision complained of." Section 78(1) provides that the provisions of sections 5 and 12 of the Indian Limitation Act, 1908 shall apply to appeals and applications under this Act and for the purpose of the said section 12, a decision under section 4 shall be deemed to be a decree.
(3.) A conjoint reading of these three provisions clearly shows that any person aggrieved of any act of the receiver may apply to the court (Insolvency Court). The court shall have full power to decide all questions whether of title etc. Whatsoever involving matters of law or fact. Power has been given to the court to invoke the provisions of section 5 of the Limitation Act. The Limitation Act then existed viz, 1908 and now amendment Act, 1963 is in operation. The same section 5 of the Limitation Act, 1963 will apply to applications under section 78(1) of the Act. The applicant aggrieved against any actions of the Official Receiver is given power to file an application within twenty one days. But after the expiry of the period of limitation of twenty days, under section 78(1) read with section 5 of the Limitation Act, power has been conferred upon the court to condone delay provided sufficient cause has been shown for the delay in applying to the court. As stated earlier, the insolvency court condoned the delay by order d'ated August 17, 1982 in I.A.No.78/81 and the order has become final. Therefore, if the Official Receiver is aggrieved of that order, it is open to him to assail the legality of that order, but having allowed it to become final, it is not open to him to assail its legality in subsequent proceedings. It is now settled law that when an order has been passed by a court, the order cannot be assailed in a subsequent proceedings. It can be assailed only if the order is a void one. But as found earlier, the court has jurisdiction to condone delay and condoned the delayed and having allowed the order to become final. It is not open to the petitioner to assail the same. Sri Parvathisam, the learned Counsel for the petitioner relied upon the decision of their Lordships of the Supreme Court in HANS RAJ V. RATTAN CHAND AND OTHERS, (1968)1 SCJ 468= (1967)3 SCR 365= AIR 1967 Supreme Court 1780, wherein their Lordships held that the limitation of twenty one days under section 68 in mandatory. From this, he contends that by inference the Supreme Court held that the court has no power to condone the delay and the order condoning the delay is a void order. I am unable to agree with the learned Counsel for the petitioner. Before their Lordships of the Supreme Court the question whether section 5 could be invoked to condone delay was not invited nor considered and therefore, it is intended, with great respect to their Lordships, to lay down that section 5 of Limitation Act cannot be invoked. So it is not an authority for the proposition that the court has no power to condone the delay in exercise of the power under section 5 of the Limitation Act. That question squarely arose for consideration in mentioning DURGARAJU v. METAM PALLAM RAJU AND OTHERS, (1963)2 An.W.R. 304=AIR 1964 Andhra Pradesh 50 wherein a Division Bench of this court held that by operation of section 78(3) of the Act, the Court has power to condone the delay and accordingly the condonation I of the delay was upheld by this Court. Even after the decision is HANS RAJ V. RATTAN CHAND AND OTHERS, (1968)1 SCJ 468= AIR 1967 SC 1780, the Division Bench decision is still good law. I respectfully agree with the Division Bench decision follow the same.