Ramdeyal Babu Lal Firm vs Lakhu Sao

Chatterji, J.—This is an appeal against an order refusing an application of creditor 1 to set aside an ex parte order of adjudication which was passed on 30th April 1938. The debtor having filed an application for adjudication, notices were duly served on the creditors fixing 23rd April 1938 as the date of hearing. On that date creditor 1 appeared and filed a petition for time to file objection. His petition was allowed and the case was adjourned to 30th April 1938 for hearing when he was to file his objection, if any. On 30th April he did file his objection, but at the time when the case was actually taken up he did not respond to repeated calls and the case was heard and disposed of ex parte. Thereafter creditor, 1 made an application for setting aside the ex parte order of adjudication. That application was treated by the learned District Judge as an application for review and it has been dismissed.

The present appeal is by creditor 1 against that order. A preliminary objection is taken on behalf of the respondent on the ground that the order appealed against being an order rejecting an application for review is not appealable. The answer is that though the expression "''review" has been used by the learned District Judge, the application really purported to be one under the provisions of Order 9, Civil P.C. Having regard to the provisions of Section 5, Provincial Insolvency Act, the provisions of Order 9, Civil P.C., may perhaps be held to be applicable to insolvency proceedings. In Bhagwan Das v. Chuni Lal AIR (1930) Lah 996, it was held by the Lahore High Court that the provisions of Order 9, Civil P.C., are applicable to proceedings under the Insolvency Act.

The case may however be looked at from another point of view. Section 35, Provincial Insolvency Act, gives the Court power to annul an adjudication if in the opinion of the Court it appears that the order of adjudication should not have been made. We may therefore in this appeal consider the propriety of the ex parte order of adjudication that was made on 30th April 1938. In this view the preliminary objection must be overruled.

The contention on behalf of the appellant is that 30th April 1938 being the last Saturday was a clearance day and under the circular of the High Court which lays down that no cases should be heard except part-heard Sessions cases and other urgent criminal work, the Court should not have heard the case ex parte on that day. The learned District Judge in his order remarks that 30th April was definitely fixed for hearing and the objector had no excuse for not appearing when the case was called on; but it appears from the order-Sheet that the case was fixed for hearing in the usual course. Indeed the objector did file his objection on that date and when that was the date fixed for hearing he should have waited, but there may be some justification for his leaving the Court-room as it was a clearance day on which judicial work was presumed not to be done.

In my opinion the orders and circulars issued by the High Court should be followed by the lower Courts and although I think there was some negligence on the part of the objector, the Court, should not have heard the case ex parte, on the last clearance, day. In this view I would allow the appeal, set aside the ex parte order of adjudication and direct that the case be disposed of according to law. In the circumstances there will be no order for costs.

Rowland, J.

I concur in the order.