Trasi Deva Rao alias Ananthaya vs Pandit Parameshwaraya and Another

A preliminary objection has been taken by the respondent that the hearing cannot proceed, because no notice of the appeal has been given to

the creditors, other than himself. Section 46 of the Provincial Insolvency Act Specifies the class of persons entitled to appeal. But no provision

specifies those entitled to be made, or whom the appellant is obliged to make respondents; and we can obtain no indirect guidance on the point by

inference from other parts of the Act. For it is not possible to hold that all other creditors of the insolvent, whether named or not named in the

petition and whether they have appeared at the adjudication proceedings or not, are necessarily parties, to whom general or special notice of the

Appeal should issue. We decide to follow the English procedure, stated in the English Order LVIII, Rule 2(1)--vide also In re A Debtor (1901) 2

K.B. 354 and to bold that only parties directly affected by the appeal are entitled to notice. It has not been shown that any special circumstances

exist, in consequence of which other creditors ban those already on the record can be supposed to be so affected. We therefore disallow the

preliminary objection.

On the merits the learned District Judge was wrong in holding, as we understand him to have done, that the date of presentation of the petition

was the date on which it was erroneously filed in the Subordinate Court before it was filed in the District Court. He could do so only with reference

to Section 14 of the Limitation Act; and it has been decided by this Court in Duraiswami Iyengar v. Meenakshi Sundara Iyer (1914) 16 M.L.T.

246 that the Limitation Act is not applicable to proceedings under the Act. As the petition can be treated as having been presented on the date of

its presentation in the District Court, it has not been presented in conformity with Section 6 of the Provincial Insolvency Act within three months of

the act of Insolvency alleged in it. It is therefore liable to dismissal. The appeal is accordingly allowed, the petition being dismissed with costs as

between the appellant and the first respondent in both Courts. The second respondent, the insolvent, will bear his own costs throughout.