LAKSHMAN BHAGAT Vs. BRIJ NANDAN PRASAD SINGH

JUDGEMENT

(1.) This application is by the original creditor (who is petitioner No. 1) and by the heirs of the other creditor namely Ram Chandra Bhagat. This application is directed against the order dt. the 15th June, 1978. by which the court below held that the two petitions dt. 25-9-1975 and 8-11-1976 were barred by limitation.

(2.) It is necessary to state here that by order dt. the 31st Jan. 1975, the Insolvency Case No. 4 of 1959 was dismissed for default and the two applications dt. 25-9-1975 and 8-11-1976 were filed for restoring the insolvency case. At this stage it is relevant to state that on 16-9-1976 an application under Section 5 of the Limitation Act was also filed by the petitioners for condoning delay in filing the application dated 25-9-1975 if any.

(3.) Mr. K. D. Chaterjee, learned counsel appearing for the petitioners, has submitted firstly, that there was no specific article for restoring the Insolvency Case dismissed for default, and it was only the residuary article which is Article 137 of the Limitation Act which, if at all was applicable in the case, and according to this Article of the Limitation Act an application can be filed within three years from the date when the right to apply accrues and in that view of the matter, two applications were within the time from 31-1-1975 according to Article 137 of the Limitation Act and the court below has wrongly held that the applications, referred to above, were barred by time. Learned counsel appearing for the petitioners has secondly urged that the order dated 31-1-1975 dismissing the Insolvency Case No. 4 of 1959 for default was not only without jurisdiction; but, obviously and apparently a mistake of the court as this date i. e. 31-1-1975 was not a date fixed for taking any steps in the Insolvency Case: but it was a date fixed for disposing of an application filed by one Smt. Pushpa, Bhagat (who is petitioner No. 3) who had filed an application on 14-2-1970 praying for being substituted in place of her grand-mother Surajmani Devi. and hence, point canvassed by the learned counsel for the petitioners is that the party cannot be allowed to suffer for the mistake of the court. Lastly, the learned counsel for the petitioners has submitted that as the Insolvency Case No. 4 of 1959 was already disposed of and adjudicated upon as long back as on 17-5-1963, and the opposite party was already declared insolvent (though ex parte), and the opposite party-debtor's application under Section 151 Civil P. C. for restoration having been already dismissed for default on 4-9-1063 and also receiver having taken charge of the properties of the opposite parties by virtue of the court's order dated 23-6-1964/27-6-1964; the Insolvency Case No. 4 of 1959 was already adjudicated upon, and hence, the court had no jurisdiction to dismiss the same for default en 31-1-1975: and in that view of the matter, the two applications referred to above filed by the petitioners for restoring the insolvency case referred to above, were mere superfluities and the court, on its own, should have ordered that the insolvency case was still continuing.