SHANKAR GANESH Vs. SATARA SWADESHI COMMERCIAL CO LTD

JUDGEMENT

(1.) This is a revision application by a judgment-debtor against an order made by the Assistant Judge of Satara on appeal from an order made by the Subordinate Judge of Islampur in an insolvency petition made by the opponent, who is the assignee of a decree obtained in Suit No. 10 of 1930 against the applicant. The said assignee filed a darkhast in 1941. During the pendency of that darkhast he also filed an application (No 2 of 1941) in insolvency against the applicant judgment-debtor who is an agriculturist. The present applicant contended; that the, application by his creditor to have him adjudged an insolvent was untenable under the Dekkhan Agriculturists Relief Act as it was barred by Section 82(6) of the Provincial Insolvency Act. The learned Subordinate Judge accepted this contention and held that he had no jurisdiction to entertain the application. Section 82(b) of the Provincial Insolvency Act says that nothing in the Act shall apply to cases to which Chap. IV of the Dekkhan Agriculturists Relief Act, 1879, is applicable. On appeal to the District Court the learned Assistant Judge who heard the appeal held that the Subordinate Judge had jurisdiction and he accordingly remanded the case to the original Court to be tried on merits. The argument of the learned Assistant Judge was on these lines. Section 24 of the Dekkhan Agriculturists Relief Act preserved to every Subordinate judge the powers conferred by Secs.344 to 359 of the old Civil P. C. as modified by Secs.25 to 33 of the Dekkhan Agriculturists Relief Act in dealing with applications under the Civil Procedure Code or under the Dekkhan Agriculturists Relief Act to have an agriculturist debtor declared an insolvent. Those sections of the old Code were repealed by the Provincial Insolvency Act of 1907 which has now been replaced by the Provincial Insolvency Act of 1920. Accordingly the reference to Secs.344 to 360A of the old Civil Procedure Code in the Dekkhan Agriculturists Relief Act must be construed as applying to the corresponding provisions of the Provincial Insolvency Act. The old Section 344 corresponded to Section 9 of the Provincial Insolvency Act under which a creditor can present an insolvency petition against a judgment-debtor on fulfilling certain conditions. All that Secs.25 to 33 of the Dekkhan Agriculturists Relief Act amounted to was to give certain advantages to agriculturist debtors and they did not take away any of the powers of the Subordinate Judges in dealing with insolvency petitions. Relying on these arguments the learned Assistant Judge thought that Section 82(b) of the Provincial Insolvency Act was no bar to the present petition being entertained by the Subordinate Judge.

(2.) Mr. Dharap on behalf of the present applicant has contended, firstly, that no appeal to the District Court from the order of the Subordinate Judge lay, and, secondly, that it was not competent to the creditor opponent to present an insolvency petition against the judgment debtor. On the first point he has relied on Section 33 of the. Dekkhan Agriculturists Relief Act, which says that no appeal shall lie from any order passed under Chap. IV except orders passed in exercise of the power conferred by Section 359 of the Civil P. C. (corresponding to Section 69 of the Provincial Insolvency Act). The section undoubtedly says that no appeal from the order of the Subordinate Judge was competent to the District Court, but under Section 53 of the Dekkhan Agriculturists Relief Act a revision lay to the District Judge on a question of legality or propriety of any order passed by a Subordinate Judge in any matter falling under Chapter IV of the Dekkhan Agriculturists Relief Act. The question before the Assistant Judge was a question of jurisdiction of the trial Court and could very properly, therefore, form the subject-matter of revision. The order of the learned Assistant Judge may, therefore, be regarded as an order in revision and there was nothing irregular in his dealing with the question that was raised before him.

(3.) The second question is more important and difficult. Section 82(b) of the Provincial Insolvency Act makes it clear that the provisions of the Act will not apply, at least primarily or initially, to cases to which Chap. IV of the Dekkhan Agriculturists Relief Act is applicable, That Chapter is headed "On Insolvency," and is meant to apply to the cases of agriculturist debtors. Section 24 of the Dekkhan Agriculturists Relief Act is in these terms :