S SAFI Vs. REHAMATH JAHAN

JUDGEMENT

(1.) THE present Civil Miscellaneous Appeal is filed by the appellant under order 43, Rule 1 of the Code of Civil Procedure (hereinafter referred to for short as 'the Code' for the purpose of convenience) challenging the order made in A. S. No. 72 of 2005 on the file of the IV Additional District Judge, Tirupati. The said appeal was preferred as against the order and decretal order made in i. P. No. 39 of 2004 on the file of the Additional Senior Civil Judge, Tirupati. CMAMP No. 77 of 2009 is filed for reception of additional evidence. CMAMP no. 2586 of 2008 is filed by Rahmath Jahan praying for vacation of the interim stay granted by this Court on 9. 9. 2008 in CMAMP No. 1963 of 2008 in CMA No. 856 of 2008. A preliminary objection had been raised that the C. M. A itself is not maintainable in the eye of law in the light of provisions of the Provincial insolvency Act, 1920 (hereinafter referred to for short as 'the Act' for the purpose of convenience ).

(2.) SRI N. Pramod, learned counsel representing the appellant had taken this court through the respective stands taken by the parties and the present order under challenge and would maintain that inasmuch as the appellate court made the order of remand, the present C. M. A had been preferred under the provisions of the Code.

(3.) ON the contrary, Sri Ahmed Mohiuddin, learned counsel representing the contesting respondent - vacate petitioner would maintain that when a specific provision under the provisions of the Act be applicable, the provisions of the code cannot be invoked.