Andhra HC (Pre-Telangana)
Elluri Venkata Sai Surya Prakasa Rao vs Guttikonda Srirama Murthy And Ors. on 18 September, 2006
Equivalent citations: 2007(1)ALD152, AIR 2007 (NOC) 217 (A. P.)
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioner filed LP. No. 87 of 2003 in the Court of the Senior Civil Judge, Machilipatnam against the respondents herein to declare him, an insolvent. Subsequently, he filed LA. No. 1370 of 2004 with a prayer to grant interim protection, restraining the respondents herein from executing the arrest warrants against him, in the respective decrees obtained by them. Through the order, dated 19-10-2005, the trial Court dismissed the LA. Hence, this civil revision petition.
2. Sri S.A. Chari, the learned Counsel for the petitioner submits that though Section 23 of the Provincial Insolvency Act (for short 'the Act') empowers the insolvency Court to direct release of the petitioner in an LP., if he was arrested in the course of execution of a decree, the Court can exercise inherent power under Section 5 of the Act, to pass orders, preventing arrest of the insolvent. He places reliance upon a judgment of the Madras High Court in Nallagatti Goundan v. Ramana Goundan AIR 1925 Mad. 170.
3. Sri G. Dhananjai, the learned Counsel for respondents 1 to 8, on the other hand, submits that in view of the protection granted to a judgment-debtor under Sub-section (3) of Section 55 C.P.C., the petition is not maintainable or is, at least, premature. He submits that the trial Court considered the matter from the proper perspective.
4. The petitioner instituted the proceedings to declare him an insolvent. The respondents herein have obtained decrees, for recovery of money against the petitioner. Apprehending arrest in the respective execution proceedings, he filed LA. No. 1375 of 2004 with a prayer to grant interim protection restraining the II Additional District Judge, Vijayawada from directing his arrest in the execution of the dacree in O.S. No29 of 2003.
5. Section 23 of the Act empowers the insolvency Court to direct release of an insolvent, if he was arrested in the course of execution of a decree, during the pendency of the LP. Section 31 of the Act deals with situations, after the O.P. is adjudicated. Section 5 of the Act mandates that the insolvency Court shall have the same powers, and shall follow the same procedure, as any other Court conferred with civil jurisdiction. In fact, the powers to grant interim relief are treated as incidental to the adjudicatory powers of the Courts. Where, however, a specific provision exists, the general provisions such as Section 5 of the Act cannot be pressed into service.
6. The trial Court took the view that the application filed by the petitioner is premature. The said view is supported by the relevant provisions under the C.P.C. also. Sub-section (3) of Section 55 C.P.C. mandates that whenever a judgment-debtor in a decree is arrested and brought before the Court, the concerned Court shall inform the judgment-debtor that he had the facility to institute insolvency proceedings. The relevant steps, that are to be taken in such proceedings, are also indicated. It indirectly suggests that if an LP. is already filed, the Executing Court shall have to take the same into account, before any other steps are ordered. There is no reason to believe that as and when proceedings are initiated for the execution of decree against the petitioner, the concerned Court does not follow the procedure under Sub-section (3) of Section 55.
7. Therefore, the civil revision petition is disposed of, upholding the order under revision. However, it is directed that in case, the petitioner appears before any Executing Court, in pursuance of a notice or warrant of arrest under Rule 37 of Order 21 C.P.C, such Court shall take into account, the fact that the petitioner had already instituted the LP. There shall be no order as to costs.