JAKKU PAPAMMA Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) The appellant is said to be the daughter of the insolvent. The Official Receiver proceeded to sell the suit property as if it were the property of the insolvent; and early in the administration the appellant filed an application under Secs.4 and 5; of the Provincial Insolvency Act asking for a declaration that the property in question belonged to her and for an injunction restraining the Official Receiver from including this land in the estate of the insolvent and selling it. She frequently defaulted in appearance; and at last, on 29 April, 1937, the District Munsiff, adopting the procedure to be followed in a suit, dismissed the application for default of appearance. She then filed an application to restore the petition, which was dismissed on the ground that she had frequently defaulted and that her application was not a bona fide one. She now seeks to get rid of those decisions by filing a suit against the Official Receiver, again setting up her title to the land. The Official Receiver raised the preliminary objection that the matter had been concluded by the order on her earlier petition; and both the District Munsiff and the District Judge in appeal upheld the Official Receiver's objection. She has come here in second appeal.

(2.) Under Section 4 of the Provincial Insolvency Act the Court is not bound to go into claims raised by third parties; but there can be no doubt that the Court did in this case deem it expedient and necessary to decide the question that the appellant raised; and if that question had been decided on the merits, there can be no doubt at all that she would not have been entitled to raise the question again in any other litigation. The question however is whether, in view of the fact that the petition was not disposed of on the merits but was dismissed for default, Section 4 applies. Sub-section (2) of that section runs, Subject to the provisions of this Act . . . every such decision shall be final and binding for all purposes as between, on the one hand, the debtor and the debtor's estate, and, on the other hand, all claimants against him or it and all persons claiming through or under them or any of them. The question is, was there any decision? I find it difficult to answer that question in the affirmative. Section 5 applies the procedure of the Civil Procedure Code to applications under the insolvency Act; and so the Insolvency Court, upon the failure of the plaintiff to appear, was bound to dismiss her application. It had no choice in the matter; it made no decision.

(3.) If Section 4 does not prevent the appellant from filing a suit, it remains for consideration whether Section 5 read with the Civil Procedure Code prevents her from doing so. Section 5 (2) does not say that the Code shall be applied to all proceedings; but it says, 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. It follows from that, I consider, that the Court had the power under Order 9, rule 8, Civil Procedure, Code, to dismiss the application for default. It is contended that the first part of rule 9 of Order 9, which says, Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. is not a power given to the Court nor is it a procedure. Nevertheless, I think that the first part of Order 9, rule 9 must be applied; otherwise it would make the other parts of Order 9 without meaning. There is no point at all in dismissing the application of a defaulting petitioner if he could immediately come in and file a fresh application asking for precisely the same relief.