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Judgment
Syed Shah Mohammed Quadri, J.—This Civil Revision Petition is filed u/s 75 of the Provincial Insolvency Act (for short ''The Act''). The petitioner herein is the debtor. He filed I.P.No. 14 of 1984 in the Court of the Additional Subordinate Judge, Ongole u/s 10 of the Act praying that he may be declared as Insolvent. On 4-11-1986 the learned Additional Subordinate Judge, Ongole allowed the petition. Dissatisfied with the said Judgment, the creditor filed an appeal A.S.No. 8 of 1987 on the file of the Additional Subordinate Judge, Ongole. On the question whether the petitioner has proved his inability to discharge his debt, the learned Additional District Judge, held in favour of the creditor on the ground that the insolvent did not make a declaration as postulated u/s 13(1)(e)(iii) of the Act; he set aside the order of the learned Additional Subordinate Judge, Ongole in the I.P. and allowed the appeal dismissing the I.P. by his judgment dated: 5-10-1987. The correctness of the judgment is assailed in this Civil Revision Petition.
Sri G. Pedda Babu, learned counsel for the petitioner, submits that compliance of Section 13 is not mandatory and for the first time the learned Additional District Judge on his own raised the question of compliance of Section 13, accordingly he allowed the appeal dismissing the I.P. Section 13 of the Act, submits the learned counsel, relates to the contents of the application filed u/s 10 of the Act. It deals with various particulars to be incorporated in the petition. The learned counsel for the respondents, on the other hand, contends that the requirement is mandatory and the appellate Court has rightly dismissed the petition.
The short question that arises for consideration is; whether non-compliance of Section 13(1)(e)(iii) of the Act entails dismissal of the petition?
No doubt, 13 (1) of the Act requires that every insolvency petition presented by a debtor shall contain the following particulars:
"The amount and particulars of all his property, together with a declaration of his willingness to place at the disposal of the court all such property save in so far as it includes such particulars as are exempted by the Code of Civil Procedure, 1908, or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree."
Having regard to the particulars which are required to be furnished it is clear that the provisions are not mandatory. If any of the particulars are not furnished, the proper course would be to return the petition for compliance but not to dismiss the same. Particularly when the objection for non-compliance was not raised in and was not considered by the trial court, the appellate court ought not to have dismissed the petitioner for that reason. In the circumstances, the order under revision suffers from illegality in the exercise of jurisdiction and cannot be sustained. I am supported, in my view by the judgment of this Court, dated 11-8-1989 in CR.P.No. 530 of 1988.
The petitioner is directed to furnish his declaration postulated u/s 13(1)(e)(iii) of the Act within one month from to day in the Appellate Court. On filing of the same, the same shall form part of the petition. On filing of the declaration, the Appellate Court shall take up the matter for disposal according to law. In the result, the order of the Appellate Court, dt.5-10-87 is set aside and the case is remanded to the Appellate Court to decide the appeal afresh in accordance with law.
The Civil Revision Petition is accordingly allowed. No costs.