IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13841 of 2009(O)
1. T.M.SEBASTIAN, S/O MATHAI,
... Petitioner
Vs
1. K.L.CONSTANTINE,
... Respondent
2. STATE BANK OF INDIA,
3. FEDERAL BANK LTD.,
For Petitioner :SRI.JOHNSON MANAYANI
For Respondent :SRI.P.GOPINATH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.13841 of 2009 - O
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Dated this the 3rd day of June, 2009
J U D G M E N T
This writ petition is filed under Article 227 of the
Constitution of India seeking the following reliefs:
“i) To call for the records leading to Exts.P1 to P7
and to issue appropriate orders setting aside Ext.P6
order and confirming Ext.P4 order passed by the
learned Sub Judge in Ext.P3 proceedings.
ii) Declare that Ext.P4 order is legally sustainable
and the modification passed by the learned Sub Judge,
Pala as per Ext.P6 is legally unsustainable”.
2. Petitioner has initiated insolvency proceedings as
I.P.No.3/2009 to declare the 1st respondent as an insolvent
before the Sub Judge, Pala. Petitioner also moved an application
under Order XXXIX Rule 1 CPC to restrain the respondent from
slaughter tapping the rubber trees in his property which was
separately scheduled. The learned Sub Judge initially passed an
ex-parte order of injunction. Respondent on entering appearance
filed objection to this I.A. contending that the property scheduled
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was already under order of attachment before judgment in a suit
filed by the very same petitioner. After hearing both sides, the
learned Sub Judge passed Ext.P6 order modifying the order of
injunction permitting the respondent to slaughter the rubber
trees, but prohibiting him from cutting and removing other trees
in his property. Impeaching the correctness of that order, the
petitioner has filed the above writ petition invoking the
supervisory jurisdiction of this Court under Article 227 of the
Constitution of India submitting that the order is not proper and
legal.
3. I heard the counsel on both sides.
4. A preliminary objection is raised by the learned
counsel for the respondent that the writ petition is not
maintainable as the petitioner has alternative efficacious remedy
by way of statutory appeal under Section 79 of the Insolvency
Act. Resisting that challenge learned counsel for the petitioner
invited my attention to Ext.P7 judgment passed by this Court in
an insolvency proceedings. I find that Ext.P7 judgment was
passed by this Court in respect of a proceedings where the
W.P.(C).No.13841 of 2009 – O
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procedural matter was involved and not a substantive right of a
party. The application moved under Order XXXIX Rule 1 CPC by
the petitioner for injunction is not one concerning the procedure
but depend upon the substantive right of the petitioner to claim
such an injunction against the respondent who is sought to be
declared as insolvent. Section 79 of the Insolvency Act reads
thus:
“79. Appeals:-
(1) The debtor, any creditor, the receiver or
any other person aggrieved by a decision come into or
an order made in the exercise of insolvency jurisdiction
by a Court subordinate to a District Court may appeal
to the District Court and the order of the District Court
upon such appeal shall be final:
Provided that the High Court, for the purposes of
satisfying itself that an order made in any appeal
decided by the District Court wasaccording to law, may
call for the case and pass such order with respect
there to as it thinks fit;
Provided further that any such person aggrieved
by a decision of the District Court on appeal from a
decision of a subordinate Court under section 4 may
appeal tot he High Court on any of the grounds
mentioned in sub-section (1) of section 100 of the
W.P.(C).No.13841 of 2009 – O
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Code of Civil Procedure, 1908.
(2) Any such person aggrieved by any such decision
or order of a District Court as is specified in Schedule
I, come to or made otherwise than in appeal from an
order made by a Subordinate Court, may appeal to the
High Court.
(3) Any such person aggrieveda by any other other
order made by a District Court otherwise than in
appeal from an order made by a subordinate Court
may appeal to the High Court by leave of the District
Court or of the High Court.
(4) The periods of limitation for appeals to the
District Court and to the High Court under this section
shall be thirty days and ninety days, respectively.
5. There cannot be any doubt as against the order
passed under Order XXXIX Rule 1 CPC in invoking proceedings
the remedy is by way of an appeal as provided under Section 79
of the Insolvency Act. In Narayana Panicker v. Kunju Pennu
and Others (1978 KLT 311) it is made clear that Section 79 of
the Insolvency Act is exhaustive as regard right of appeal, forum
of appeal, the subject of appeal and the period of limitation
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within which the appeal has to be preferred. The petitioner is
having a right of statutory appeal to challenge Ext.P6 order
before the appropriate forum and the writ petition is therefore
found to be not entertainable. Without prejudice to the right of
the petitioner to prefer an appeal against Ext.p6 order as
provided by the Insolvency Act, if so advised, the writ petition is
dismissed. Operation of Ext.P6 shall be kept in abeyance for a
period of one week to enable the petitioner to prefer an appeal
against that order as provided under Section 79 of the Insolvency
Act.
Subject to the above observation, this writ petition is
dismissed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-