AYYASAMI CHETTY Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) This is an application filed under Section 75 of the Provincial Insolvency Act (V of 1920) and also under Section 107 of the Government of India Act tasking the High Court to revise the order passed by the District Judge of Coimbatore in C.M.A. No. 51 of 1927. One Vedam Chetty was declared insolvent in I.P. No. 6 of 1923 on the file of the Subordinate Judge's Court of Coimbatore. Time for applying for discharge was extended from time to time and it was finally extended to 9th January, 1927. The petitioner before me, who is the father of the insolvent and who also was an alienee from the insolvent, applied on 21 December, 1926, to have the adjudication of the insolvent annulled under Section 43 of the Provincial Insolvency Act. Notice of this application (I.A. No. 121 of 1927) was served upon the Official Receiver. On the 14 March, 1927, the Official Receiver applied to the Court to have time for discharge extended till 9 January, 1928. Evidently expecting that the Court would not pass final orders on the 17 March, 1927, the date to which the alienee's application was posted for hearing, the Official Receiver did not appear before the Court on the 17 March, 1927. Under the idea that the application was not contested by any creditor nor by the Official Receiver, the Court passed orders (annulling the adjudication on 17 March, 1927. Immediately after, the Court was made aware of the fact that the Official Receiver had already applied to have the time extended and that he was really contesting the application by the insolvent's father. The Official Receiver, on becoming aware of the orders passed on 17 March, immediately applied (on the 23 March, 1927) under Section 5 of the Provincial Insolvency Act read with Order 9, Rule 13 and Order 47, Rule 1, Civil Procedure Code, for setting aside the ex parte order passed on the 17 March. The learned Subordinate Judge came to the conclusion that he had jurisdiction to entertain the application of the Official Receiver and that on the merits the case before him was one in which orders should be passed in favour of the Official Receiver. The result was that the order of the 17 March, 1927, was set aside and I.A. No. 121 of 1927 was restored to file. Against the order an appeal was preferred by the alienee, the father of the insolvent, to the District Court of Coimbatore. The District Judge confirmed that order and dismissed the appeal. The present revision petition has been filed by Ayyasami Chetty, the father of the insolvent and alienee of his property, to this Court.

(2.) On behalf of the petitioner the learned advocate who appeared for him raised before me two points, (1) that the Lower Court had no jurisdiction to entertain an application for review of the order passed on the 17 March, 1927; and (2) that in any case on the merits the Receiver had made out no case for orders being passed in his favour.

(3.) On the question of jurisdiction of the Court to entertain such an application the learned advocate referred me to a decision of a bench of this Court reported in Venugopalachariar V/s. Chinnulal Sowcar . There the learned Judges had to consider whether, having regard to the provisions of Section 5 of the Provincial Insolvency Act read with Section 10 (2) of the same Act, an insolvent whose application had been dismissed for his absence was entitled to apply for review or to apply under Order 9, Civil Procedure Code. The learned Judges held that Section 5 has to be read along with Section 10 (2), and as the insolvent had a right to apply afresh he was not entitled to make the application. An earlier decision of another bench of this Court in the case reported in Abbireddi V/s. Venkatareddi (1925) 51 M.L.J. 60 was brought to their notice; but, as I understand the judgment in the case reported at page 209, the learned Judges, though not agreeing with the reasoning of the decision in the case reported at page 60, proceeded to dispose of the case before them on the ground that the petitioner in that case being the insolvent had other remedies open to him and that being so the remedy sought by him in that case was not available to him under Order 9, Civil Procedure Code. Naturally the learned advocate for the petitioner laid great emphasis on this decision, and invited me to hold that under the Insolvency Act there is no power of review open either to the Official Receiver or to the creditors, or any right to apply under Order 9, Civil Procedure Code. I regret I am unable to agree with this extreme contention. Section 5 of the Provincial Insolvency Act enacts that 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.