RAMPRATAP MARWARI Vs. LACHMAN MISTRI

JUDGEMENT

(1.) This is an appeal by a creditor from an order of the District Judge of Manbhum, rejecting his application praying that the order adjudging one Lachman Mistri as an insolvent be set aside and Lachman Mistri's insolvency petition be reheard. Lachman Mistri made his application on 18 June 1938, in which he mentioned four creditors including the appellant. It appears that notices were issued to all the four creditors including the appellant, but in the notice which was issued to the appellant he was described as Ram Kumar Marwari, and not as Rampratap Marwari. A notice stating that Lachman Mistri had made an application for being declared" in-solvent was also published in the Bihar Gazette on 20 July 1938. On 23 July 1938, the learned Judge passed an ex parte order granting the application of Lachman Mistri for being declared insolvent.

(2.) On 23 July 1938, the appellant appeared in Court and made an application for setting aside that order on the ground that he had received no notice of Lachman's application. The learned Judge dismissed this application on 20 March 1939, and hence this appeal. The first question to be decided is whether an application for setting aside an insolvency order, which was made ex parte can be entertained.

(3.) It is contended on behalf of the respondent that such an application is not maintainable under the Insolvency Act, and the learned advocate appearing on his behalf contends that if such an application could be entertained, there would have been a provision in the Act similar to Section 25, Clause (1). In that clause it is provided that in the case of a petition presented by a creditor, where the Court is not satisfied with the proof of his right to present the petition or of the service on the debtor of notice of the order admitting the petition, or of the alleged act of insolvency, or is satisfied by the debtor that he is able to pay his debts, or that for any other sufficient cause no order ought to be made, the Court shall dismiss the petition. It is pointed out that whereas the Act specifically provides that in the case of a petition presented by a creditor the petition may be dismissed if the Court is satisfied that there was no service on the debtor of notice of the order admitting the petition, no similar provision is made where a petition is presented by a debtor and the creditor is not served with a notice. Section 18, Insolvency Act, provides that The procedure laid down in the Civil Procedure Code 1908, with respect to the admission of plaints, shall, so far as it is applicable, be followed, in the case of insolvency petitions. Again, Section 5 of the Act runs as follows: (1) Subject to the provisions of this Act, the Court, in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction. (2) Subject as aforesaid, High Courts and District Courts, in regard to proceedings under this Act in Courts subordinate to them, shall have the same powers and shall follow the same procedure as they respectively have and follow in regard to civil suits.