JAIKRISHNA VISHWANATH Vs. SAWATRAM RAMPRASAD SHOP

JUDGEMENT

(1.) ONE Vyankatesh was adjudged insolvent on his own petition. At the instance of one of his creditors, Sawatram, the Insolvency Court ordered the attachment and sale of a house. Vyankatesh's nephews, the sons of his deceased brother Vishwanath, objected, alleging that this house had been allotted to their father in a partition effected about 13 years before, and alternatively, that if the house was joint family property, their half share in it was not liable to attachment and sale. The Insolvency Court held that there had been no partition and that the insolvent's nephews had a half share in the house which was not liable to attachment and sale. Against that decision, the nephews appealed and the creditors filed cross-objections contending that the entire house was liable to be sold to meet the debts that had been incurred for the benefit of the family. The learned Additional District Judge held that there had been no partition and remanded the case for decision of the points whether the debts were binding upon the nephews and whether Vyankatesh had any power of disposal over the interests of his nephews when he filed his insolvency petition and if so, how the receiver, who was to be appointed, could use those powers in order to satisfy those debts.

(2.) THE first point taken in this Court is that the creditors had no right to file cross-objections on the ground that Order 41, Rule 22, Civil P.C., does not apply to appeals under the Provincial. Insolvency Act. Section 5(2), Provincial Insolvency Act, provides that 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. From this, it would appear that the procedure relating to cross-objections contained in Order 41, Rule 22 would apply, and this was the view taken in Alagappa Chettiar v. Chockalingam Chettyar (1919) 6 AIR Mad 784. In Maung Ba Thaw v. Ma Pin (1934) 21 AIR PC 81, which was an appeal under the Provincial Insolvency Act, their Lordships of the Privy Council held that where a right of appeal is given to one of the ordinary Courts the procedure will be governed by the ordinary rules of the Civil Procedure Code. I therefore hold that the respondents in the District Court were entitled to file cross-objections. It has also been contended that there was no need for remand because full pleadings had been recorded and the issues framed covered all the points raised. In the objection filed by the insolvent's nephews Sawatram alone of the creditors was cited and the other creditors had no notice of the objection and were given no opportunity of pleading to it. As the learned Additional District Judge has rightly pointed out, the nature of the various debts has to be considered in deciding whether the debts are binding on the nephews, and this has not yet been done.