- (1.) This revision is under section 75(1) First Proviso of the Provisional Insolvency Act (hereinafter referred to as the Act) on behalf of a creditor (who was a party as non petitioning creditor in the insolvency proceedings). Its application to recall the order dated 5th of October, 1962 passed on the application of other creditors who were petitioners in the petition to adjudge Smt.Kamla Bai as insolvent, has been dismissed by the Insolvency Judge.
(2.) Two persons, namely Lala Raja Ram and Lala Madho Ram, filed creditor's petition before the Insolvency Judge for declaring Smt.Kamla Bai, opposite party No.6 (in the present revision) insolvent and cancellation of sale deed dated March 10, 1960 executed by her in favor of Shri Kant who was arrayed as opp. party No.7 in the insolvency petition. It was registered as case No.37 of 1960. Besides Smt.Kamla Bai and Shri Kant a few other persons namely Lok Narain, Jagannath, Cooperative Insurance Company through Life Insurance Corporation of India, Mangal Das were arrayed as opp. parties in the insolvency petition being other creditors of Smt. Kamla Bai. The insolvency petition was filed on the allegations that Smt. Kamla Bai with a view to avoid the payment of creditors' dues executed two sale deeds both dt. 10th March, 1960 in favour of Shri Kant, the opp. party no.7 in the insolvency petition. After recording of evidence in the insolvency petition, an application being paper No. 139 B was filed by Raja Ram and Madho Saran on October 5, 1962 with the allegations that Smt.Kamla Bai has paid their decretal amount of the decree No.331 of 1950 (Execution Case No.63 of 1952) and also of Case No.1135 of 1953 and the execution has been struck off after recording full satisfaction of the decree and as such Smt.Kamla Bai is in a position to pay and has discharged all their dues. It was prayed for that the insolvency petition No.37 of 1960 be dismissed with costs on the parties. On copy of the said application Smt.Kamla Bai endorsed was made that she does not press for costs. The Insolvency Judge on the same date i.e. on 5.10.1962 passed the following order on the application for withdrawal :- "the application for declaring opp.party as insolvent is rejected as prayed for per application no. 139/B with cost on parties."
(3.) Subsequently thereto the present applicant, Life Insurance Corporation (LIC) availed two remedies against the aforesaid order. An application under section 14 and 16 of the Insolvency Act as well as under Order 41 Rule 1 read with 151 C.P.C. was filed on 5th of November, 1962 before the Insolvency Judge to review the aforesaid order which was dismissed on 10.5.1963. It also filed and appeal, during the pendency of the review application, against the order dated 5/10/1962 with some delay in its filing and the delay was condoned. The Additional District Judge by the order dated 7/10/1977 has dismissed the said appeal on the ground that the appeal was not maintainable in as much as the order dated 5th of October, 1962 has merged with the order dated May 10, 1963 passed on the review application whereby the review application was dismissed. Otherwise also it rejected other contentions of the applicant that no notice was given to the creditors while allowing application no. 139/B on the ground that there is nothing to show the negligence or want of diligence on the part of the creditors (Lala Raja Ram and Madho Ram, who filed the insolvency petition). Aggrieved against the aforesaid order the present revision is on behalf of a non petitioning creditor namely L.I.C.;