A.G. Nallaperumal Nattarayar vs Singaravelu Seennandar and Kolandayya Sennandar and Others

Raghava Rao, J.—Mr. Ramakrishna Aiyar has raised an interesting point in this civil revision petition. I have after hearing the elaborate

arguments of Mr. Kothandarama Naya-nar on the point in question, come to the definite conclusion that this revision must fail.

The point raised is that on an application for re-adjudication after the annulment of the original adjudication on account of the failure of a

composition scheme which intervened, it was incumbent upon the petitioning creditors to satisfy the requirements of Section 9, Provincial

Insolvency Act. The petition for cancellation of the original adjudication and for re-adjudication was presented to the Court below u/s 40,

Provincial Insolvency Act. Mr. Ramakrishna Aiyar urges that the debtor ought not to have been re-adjudicated an insolvent because the persons

applying for his re-adjudication did not prove that the debts alleged to be due to them were subsisting. That such debts were not subsisting the

learned counsel has attempted to make out by relying on the provisions of Section 78, Provincial Insolvency Act. The creditors ought to have

taken, once the original adjudication was annulled, although at the same time as the annulment of the original adjudication, there as also an order

vesting the property in a special appointee u/s 37, Provincial Insolvency Act, steps for the recovery of the debts due to them within the period

limited by Jaw, subject, of course, to the deduction of the period from the date beginning with the date of adjudication and ending with the date of

annulment and if they chose not to file suits, then their debts would naturally get barred by limitation and, if so, those persons would lose their

''locus standi'' to ask for re-adjudication.

If this process of reasoning is correct, the conclusion follows, says the learned counsel, that the debtor ought not to have been re-adjudicated

insolvent at all in the circumstances of the present case. Mr. Ramakrishna Aiyar has sought to reinforce his argument by a reference to the several

provisions of the Act, which go to show that after re-adjudication, the same incidents as are indicated in the case of the original adjudication

become applicable to the case. With some reasonable vehemence, the learned counsel maintained that re-adjudication is only one form of

adjudication and that the same requirements, as have to be fulfilled in the case of an application for original adjudication have still to be fulfilled in

the case of an application for a re-adjudication. I cannot say that the argument did not carry some force with it to my mind as I was hearing the

learned counsel, and it also seemed to be that being in the nature of a quasi-criminal proceeding, the petition, whether for adjudication or for re-

adjudication must be scanned with very meticulous care with regard to the requirements which have to be fulfilled. But the requirements in question

are really to be gleaned from the statute itself, which cannot he added to or detracted from by an arbitrary process of construction. It seems to me

that when the statute is thoroughly silent as to the kind of requirements u/s 9, Provincial Insolvency Act, which are to be fulfilled in the case of

original adjudication where the statute deals with re-adjudication, it is not for me by a process of judicial construction to indulge in anything like a

legislative enlargement of the Act. I feel constrained for the reasons given to repel the argument of the learned counsel for the petitioner.

Mr. Ramakrishna Aiyar has drawn my attention to the decision -- Guntur Akkayya Vs. Pathuri Appayya, and states that this is a decision, which

the Court below ought to have relied upon but did not rely upon in view that it took that view being covered by the decision -- ''Kami Reddi

Timmappa v. Devasi Harpal'', 56 MLJ 458 and which favoured the view that it was taking.

In answer to the argument of Mr. Ramakrishna Aiyar, Mr. Kothandarama Nayanar, the learned counsel for the respondent has endeavoured to

satisfy me that, where the annulment of the original adjudication is not one pure and simpliciter, but one coupled with an order vesting the estate in

a special appointee u/s 37, Provincial Insolvency Act it makes a difference to the legal position. But the case in -- Guntur Akkayya Vs. Pathuri

Appayya, was itself a case of appointment of a special trustee u/s 37 of the Act and yet it was held that to the decision of that case, it did not

matter. That case however turned upon an altogether different question and has very little in my opinion to do with the point, which arises for

determination at my hands. That was a case of a suit brought on the foot of a debt due to one of the debtors in the insolvency after the annulment

of adjudication and the opinion of the learned Judge (Happell J.) was that not merely the period between the date of the annulment and the date of

the suit was to be taken into account for the purpose of deduction u/s 78, Provincial Insolvency Act but also the further time between the date of

annulment and the date of the complete closure of the insolvency proceedings, which continued to some extent after the appointment of a special

trustee u/s 7, Provincial Insolvency Act. No such contention has been urged in the present case.

Mr. Ramakrishna Aiyar has relied upon the decision more for the principle that he is very anxious to spell out of it than for the decision itself which

turned upon a clearly different state of facts to what we have here. He says that if the principle or decision is to be applied to the present case the

petitioning creditors in the present case who sought to re-adjudicate the debtor as an insolvent must be held to have had their debts barred by

reason of their failure to institute suits or take proceedings in order to keep their debts alive and that, therefore, the order of adjudication was

incompetent and that the debtor ought not to have been re-adjudicated insolvent on a petition for re-adjucucation by such petitioning creditors. As

I have said, the decision cited does not bind me with reference to the present case and I am not prepared to read more into it than what it actually

contains.

Mr. Ramakrishna Aiyar has also stated that there seems to be power of review in Courts to modify or rescind the original order of adjudication

quite apart from Section 35, Provincial Insolvency Act. But when dealing with the topic of re-adjudication, if there are specific provisions in the

statute to guide us, I am not prepared to say that you will have to apply other provisions, but assuming that other provisions applied, that is to say

the provision for review which you have in the Civil Procedure Code, I have not been shown any reasonable ground for saying that that was the

provision under which the Court be low was invited to exercise its powers or that this is the provision under which I am equally bound to deal with

this matter. As I have already stated, I have no hesitation in dismissing this revision petition as not well founded.

I dismiss it with costs.