Abraham Thomas vs Ouseph Varghese and Others

U.L. Bhat, J.—Appellant herein, filed an application before the Subordinate Judge''s Court, Kottayam, u/s 15 of the Kerala Agriculturists'' Debt Relief Act. 1970 (for short ''The Act'') alleging that he is an agriculturist who is unable to pay his debts and unconditionally offering to leave all his assets in the control of the Court. The Original Petition came up for consideration on 2-8-1983. Both sides asked for time and the court adjourned the case to 9-9-1983 making a note that there will be no further adjournment. On 9-9-1983 the petitioner was not present It appears his counsel filed an application for adjournment on the ground that the claimant was laid up with fever and cough. The court was not inclined to grant adjournment and dismissed the Original Petition for default. That order is now challenged. A doubt has been expressed at the Bar regarding the maintainability of the appeal. It is pointed out that the provision for appeal is contained in Section 21 of the Act. According to this provision, an appeal shall lie against any order passed under Sub-section (8) of Section 7 or Section 9 or Section 11 or Section 13 or Section 14 or Section 16 or Section 20 to the court to which appeals ordinarily lie from the decisions of the court which has passed the order. What is alleged is that the dismissal of the petition filed u/s 15 of the Act is an border u/s 15 and not u/s 16 and, therefore, no appeal is maintainable.

Section 15 deals with the application to court by persons unable to pay their debts. The manner in which the application should be submitted, is provided in Sub-section (2). The particulars which should be found in the application are prescribed in Sub-section (3). Sub-section (4) requires the court to pass an order fixing a date for hearing and issue notice to the creditors and other interested persons. Sub-section (6) states that the court shall determine the admissibility and the amount in each claim against the applicant or his properties and shall for such purpose take all steps necessary for the determination of any question raised in the case.

Section 16 deals with settlement of liabilities by court. The court shall, after determination of the admissibility and the amount of each claim under Sub-section (6) of Section 15, settle the liabilities of the debtor in the manner mentioned under that Section.

We notice that neither Section 16 nor Section 15 specifically requires the court to pass any order. Section 15 seeks the court to determine certain things and Section 16 requires the court to settle certain liabilities. In practice, courts do pass two orders, one preliminary order dealing with objections regarding the maintainability or otherwise which may be raised by the respondent before the court and the other final order settling the liabilities. On a reading of Section 15 and Section 16 together and bearing in mind the purpose of these provisions, we are of opinion that the order which are to be passed in the proceedings initiated u/s 15 have to be treated as orders passed u/s 16. Orders so passed are appealable u/s 16. The appeal is maintainable.

Respondents before the court below filed counter statement only on 23-3-1983. Thereafter the case was posted for evidence to 6-7-1983, 2-8-1983 and 9-9-1983. The-order sheet does not indicate that the case was adjourned on those occasions at the instance of the appellant. On 9-9-1983 an application had, in fact, been submitted on behalf of the appellant alleging that the appellant was ill and unable to attend court. We find that no order had been passed on that application on that day. We find that the order dismissing the application was passed only on'' 12-9-1983. This would make it clear that the request for adjournment was actually not brought to the notice of the court. In these circumstances, we are of opinion that the appellant should be given an opportunity to prove his contentions in the application filed u/s 15. The impugned order is set aside. The lower court will take back on its file the Original Petition referred to above and dispose of the same in accordance with law. The appeal is thus allowed, but in the circumstances, without costs.