(1.) The revision is directed against the order of the Subordinate Judge, Kurnool, dated 7th August, 1962, made in I.A. No. 66 of 1962 in I.P. No. 34 of 1961, whereby he has directed the respondent herein to be impleaded as 2nd respondent in I. P. No. 34 of 1961.
(2.) The respondent herein filed a petition under Order 1, rule 10 (2), Civil Procedure Code, to implead him as 2nd respondent in I. P. No. 34 of 1961 on the file of the Subordinate Judge, Kurnool. It was stated that he was a claimant in I.A. Nos. 341 and 342 of 1961 in E.P. No. 4 of 1961 in O.S. No. 257 of 1960 on the file of District Munsif's Court, Kurnool. Proceedings in his claim petition have been stayed by an order in I.P. No. 34 of 1961 and when he sought for stay of execution in I.P.No.34 of 1961 his petition was dismissed on the ground that he was not a party to I.P. No. 34 of 1961. Therefore, he filed I.A. No. 66 of 1962 to be impleaded as a party in the insolvency proceedings. This was resisted by the petitioner but the learned Subordinate Judge on a consideration of the circumstances of the case ordered the petition. Hence the revision petition.
(3.) The learned Counsel for the petitioner contended that the provisions of Order 1, rule 10(2), Civil Procedure Code, are not attracted and referred to the decisions in Venkata Nagayya v. Sitaramayya, (1955) Andh.W.R. 322 : A.I.R. 1955(N.U.C.) Andhra 4816, and Jaleel Sahib v. N.S. Srinivasan , (1951) 1 M.L.J. 87 : A.I.R. 1951 Mad.665, to substantiate his arguments. In the latter case the question for consideration was whether a Court exercising insolvency jurisdiction can direct additional parties under Order 1, rule 10 (2), Civil Procedure Code. It was an application by another creditor for impleading him as a party to the petition. With reference to section 16 of the Provincial Insolvency Act it was held that as there was a specific provision in the Insolvency Act for substituting the petitioning creditor, the provisions of Order 1, rule 10 (2), Civil Procedure Code, are not attracted. The ratio decidenti of the case is that when the Provincial Insolvency Act itself provides the remedy, section 5 of the Insolvency Act cannot be invoked to avail of the procedure prescribed by the Code of Civil Procedure. To the same effect is the principle followed in the earlier decision viz., Venkata Nagayya v. Sitaramayya. In the light of these decisions the question is whether there is any remedy open to the petitioner under the Insolvency Act and whether the petition filed under Order 1, rule 10 (2), Civil Procedure Code, strictly complied with the requirements of that provision.