JUDGMENT Prakash Krishna, J.
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 favour 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 other persons namely Lok Narain, Jaggannath, 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.
3. 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. Karnal 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 alter 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 us insolvent is rejected as prayed for per application No. 139/8 with cost on panics.
4. Subsequent thereto the present applicant, Life Insurance Corporation (LIC) availed two remedies against the aforesaid order. An application under Sections 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 an 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. !39/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.
5. Shri Manish Goel, the learned Counsel for the applicant, submitted that in view of the plain language of Sections 14 and 16 of the Act and the law as developed through process of interpretation of these provisions in various judicial pronouncement, the Insolvency Judge could not have permitted the withdrawal of the creditors' petition as it was not on behalf of whole body of the creditors of Smt. Kamla Bai. Elaborating the argument it was submitted that a notice to entire body of the creditors was mandatory requirement before permitting the withdrawal of the creditor's petition and in absence of any such notice the order dated 5th of October, 1962 of the Insolvency Judge cannot be sustained. The fact that two creditors applied for dismissal of their creditor's petition, itself shows that there was lack of diligence, on their part.
6. In contra, Shri Prakash Gupta, the learned Counsel appearing on behalf of heirs of Smt. Kamla Bai (who died during the pendency of the revision) submitted that the present revision is not maintainable. The order dated 5.10.1962 against which the appeal was filed before the Court below merged in the order dated May 10, 1963 whereby the review application was dismissed by the Insolvency Judge and as such the appeal ceased to be a valid appeal, resultantly the present revision is not maintainable. On merits, the Life Insurance Corporation was represented through counsel Shri B.N. Mathur, Advocate, and therefore the question of giving notice to the non petitioning creditors is of little value. He pointed out that in the order dated 5.10.1962 it is mentioned that the parties are represented through their counsel and since there was no objection from the side of any party, it is too late to contend that the order dated 5.10.1962 is bad or is liable to be recalled. First, 1 shall take up the question of non maintainability of appeal before the court below and consequently the nonmaintainability of the present revision, as urged by the learned Counsel for the opp.party. Indisputably, an application to recall/review of order dated October 5, 1962 under Sections 14 and 16 of the Act was filed by the present applicant before the Insolvency Judge. During the pendency of the aforesaid application, the appeal giving rise to the present revision was also filed before the court below challenging the legality and validity of the order dated 5.10.1962, The review application was dismissed on May 10, 1963. The contention of the debtor opp.party is that the order dated 5.10.1962 has been merged with the order dated May 10, 1963 and since the latter order has attained finality, the order dated 5.10.1962 became nonexistent and therefore the appeal was not maintainable. Strong reliance has been placed on Apex Court judgment, Sushil Kumar Sen v. State of Bihar with particular reference to para 2 of the report which reads as follows:
It is well settled that the effect of allowing an application for review of decree is to vacate the decree passed. The decree that is subsequently passed on review, whether it modifies reverses or confirms the decree originally passed, is a new decree superseding, the original one.
7. There can not be any quarrel to the aforesaid proposition of law. But it is difficult to invoke the same in the facts and circumstances of the present case. The aforesaid observations should be read and understood in the context in which they were made. The Learned Additional District Judge had allowed the review application and passed a fresh judgment subsequently reducing the compensation amount. The review application was allowed by the appellate court and no appeal was filed against the subsequent decree passed after allowing the review application. The Apex Court held that the subsequent decree became final vide para 3 of the report. The respondent of that case made no attempt to file an appeal against that decree when the High Court found that the review was wrongly allowed on the basis that the decree revived and came into life again. This is the basis on which observations as quoted above were made by the Apex Court. The fact situation as obtaining in the present case has no similarity and therefore the dictum laid down in the above case is distinguishable. Here the review application was dismissed by the Insolvency Judge and one of the grounds for dismissing the review application was that the application itself was not maintainable. The order dated 5.10.1962 was not varied in any manner.
8. Indisputably the order dated 5.10.1962 passed by the Insolvency Judge is appealable under the Act. Right to file an appeal is statutory and a vested right of a litigant. It cannot be said that the said right has come to an end if the review of appealable order has been rejected. Time and again the Apex Court has cautioned while invoking the doctrine of precedent that broad resemblance of another case is not at all decisive. The relevant paragraph from Ashwani Kumar v. U.P. Public Services Commission is reproduced below:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line, a case falls, the broad resemblance to another case is not all decisive.
9. In view of the above, argument of the judgment debtor that the appeal was not maintainable and so the present revision is not maintainable, is meritless and it is difficult to accept it.
10. Coming to the merits of the case, the controversy is with regard to the scope, ambit and interpretation of Sections 14 and 16 of the Act, therefore, it is apt to look at the language employed therein;
Section 14. Withdrawal of Petitions. -
No petition, whether presented by a debtor or a creditor, shall be withdrawn without the leave of the court.
Section 16. Power to challenge carriage of proceedings. -
Where the petitioner does not proceed with due diligence on his petition, the court may substitute as petitioner any other creditor to whom the debtor may be indebted in the amount required by this Act in case of petitioning creditor.
11. The language of the aforesaid two sections is plain and simple. Section 14 on its plain reading spells out that the petitioning creditor is not entitled to settle his claim with the debtor out of court and to withdraw the petition. It departs from ordinary civil litigations wherein a plaintiff is entitled to withdraw a suit or appeal subject to such terms so far as relate to payment of cost to the other side. The withdrawal by a creditor of insolvency petition necessarily requires the leave of the court. It is always discretionary with the court to grant or refuse leave to withdraw. However, the discretion by insolvency court should be exercised in a judicial manner with respect to the merits of each individual case. One of the guiding factors would be - when withdrawal prayed for is detrimental to the interest of other creditors. The object of the law of insolvency, as commended by the Apex Court in Nyeumuta Malludora v. Peruri Seetharathnam ;
...is to seize property of an insolvent before he can squander it and to distribute it among his creditors. It is, however, not every debtor who has borrowed beyond his assets or even when whose property is attached in execution of his debts who can he subject, to such control. The jurisdiction of the court commences when certain acts take place which are known as act of insolvency and which give a right to his creditors to apply the court for his adjudication as an insolvent.
12. The learned Counsel for the applicant submits that Section 14 is couched in negative language. The grant of permission is not a matter of course and requirement of giving notice is mandatory condition, should be read in Sections 14 and 16 of the Act and if these sections are not read in the manner aforestated, the very purpose and object of the Act would be frustrated. Reliance has been placed on few precedents noted below.
13. In M.S. Pushkaran v. V.S. Rama Krishnan Nair AIR 1955 T.C. 49 an application for review of an order dismissing a creditor's petition to adjudge a debtor insolvent was rejected by the Insolvency Judge on two grounds. Firstly, the T.C. Insolvency Act contains no provision for review of an order passed by a court in exercise of its insolvency jurisdiction. Secondly, the said Act contemplates a petition that is alive or in other words pending and is not dead. The High Court while reversing the order of Insolvency Judge held that the order of the Insolvency Judge on second point is sound; that at the time when substitution was ordered the insolvency proceedings were not pending.
14. However, on the first point, it vacated the order of the Insolvency Judge on the ground that when the petitioning creditor did not want to proceed with it, without recourse to Section 14 and the special procedure prescribed in Section 16, the Insolvency Judge should at least have disposed of the insolvency petition after postponing it to a particular date and notifying such postponing. Section 16 is intended to serve as a check on the fraud of either the debtor or the creditor who has presented the application for insolvency. The instances are not unknown where the petitioning creditor may collude or enter into a private treaty with his debtor, and apply for the dismissal of the insolvency petition. It has quoted a passage from Sagarmal Hanoman Prasad v. Abdul Rahman A.I.R. 1938 Oudh 101 wherein it has been observed;
The creditor presenting the petition is considered to prosecute the petition not only for his own benefit, but also for the benefit of creditors generally.
15. The concept of giving notice to other creditors and postponing the hearing of the petition to some other date and giving its notice to other creditors has been read by the Travan Core - Cochin High Court in Section 14 and Section 16 of the Act
16. The Bombay High Court in the case of Kewal P. Kashvap, Debtor v. J.H. Jagtiani, Creditor has observed as follows in paragraph -26;
In conclusion, I must hold that if a petitioner informs the Insolvency Court of a settlement arrived at between him and the debtor and seeks leave to withdraw his petition under the provisions of Section 13(8) of the Act, the Court must proceed to ascertain if there, are other creditors of the debtor and, for that purpose, must adjourn the matter and order it to be shown on the adjourned date on board for withdrawal. If another creditor appears on the adjourned day and seeks substitution, the Insolvency Court must ascertain whether his debt is in the amount required by the Act and, if it is, should refuse leave to withdraw the petitioner under the provisions of Section 13(8) of the Act and substitute the creditor as petitioner under the provisions of Section 92 of the said Act.
17. The above observations were made with reference to Sections 13 and 92 of Presidency Towns Act, are fully applicable to the Act as they are identical to the provisions of Sections 14 and 16 of the Provincial Insolvency Act, as is clear from paragraphs 7 and 8 of the report. It has relied upon a judgment of Madras High Court in the case of Venkata Hanurnantha Rao v. Gangavva AIR 1928 Madras 608 which reads as follows:
Under Section 14 of the Act, no petition whether presented by a debtor or by a creditor shall be withdrawn without the leave of the court. As pointed out in the commentary on that section by Rameshwar Dayal in his book on the Provincial Insolvency Act, "The petition once presented, the petitioner is no longer in unfettered control of it. The insolvency proceedings are for the administration of the estate of the debtor for the benefit of not any particular creditor but for the general body of creditors. Very often petitions are made not with the bona fide intention of getting the debtor's estate administered under the Insolvency laws but for the collateral purpose of bringing pressure to bear upon the debtor. It is to check this abuse of the process of the Court that the section has been enacted.
18. It has been held that the creditor presenting the petition is recorded as prosecuting the petition not only for his own behalf but also for the benefit of creditors generally. It would be an easy way of circumventing the statutory provision contained in Section 14 of the Act, if the petitioning creditor was allowed to let the application be dismissed for default when he would not be allowed to withdraw it without permission of the court. It is desirable, in such cases, that the courts before making an order of dismissal should wait for sometimes specially as Section 16 provides special procedure which enables to any creditor to have his name brought on record if the original petitioner does not proceed with due diligence on his petition. It lays down that when the petitioner seeks leave to withdraw his petition, substitution of another creditor is permissible. It also lays down that when an application for leave to withdraw a petition is made, the court should wait to see whether any other creditor desires to have his name brought on record on the petitioner. Ultimately, in para 17 of the report it was found that failure to prosecute a petition upon settlement with the debtor has been considered by Indian Courts a failure to proceed with the petition with due diligence.
19. In Keshav Appa v. Sitamm Hamunandas AIR 1946 Bombay 20 it has been held that when a creditor's petition has been dismissed in default, the court possesses inherent jurisdiction to restore an application to the file at the instance of one of the creditors. The court observed that if an application for restoring the original petition to file was dismissed and the original order dismissing the petition stood good, then a fresh petition in insolvency would have to be filed. Taking into consideration the object of the Act and the special provision contained in Section 17 of the Act, it is desirable that " Court before making an order of dismissal should wait form sometime specially as Section 16 provides a special procedure which enables any creditor to have his name brought on record as a petitioner if the original petitioner does not proceed with due diligence on his petition. It is not necessary that the court should wait indefinitely before passing an order dismissing application for default. But some intimation by way of a notice on court's notice board that in absence of any further steps being taken to continue the proceedings, the application would be dismissed on a particular date should be given to the parties interested.
20. K.V. Chandramonleswaran v. G. Krishnaswani Naidu and Ors. is an authority for the proposition that an insolvency petition should not be dismissed at the instance of the petitioning creditors on account of outside court adjustment for the reason that such dismissal entails failure of justice. The relevant extract of the report is reproduced below:
I should consider that there is considerable force in this contention of the learned Counsel for the petitioner. It is the policy and scheme of the Provincial Insolvency Act that the filing of a petition by one of the creditors to adjudicate debtors for non-payment of their debts should enure to the benefit of the rest of the creditors who may or may not be before court at the time the petition was filed. Certainly under S. 19(1) there is provision for notice being given to the rest of the creditors by means of publication in the Fort St. George Gazette. But even graining that in pursuance of such notice some other creditors appear on the scene and are brought on record before the court which hears the petition for adjudicating the debtors, if the other creditors are actually not in court on the day on which a compromise between the petitioning creditor and the debtors is entered into, it may not be just nor proper that the other creditors should be deprived of their legitimate right to the benefit of the insolvency proceedings. Much worse would be the position if the creditors are yet to come on the scene.
As has been observed in - ' AIR 1946 Bom 20 (B) ' even when a petition is dismissed for lack of due diligence on the part of the petitioning creditor, it will be just and proper that the court should wait for some reasonable time before a final order of dismissal for default is passed, with a view to enable the other creditors to get themselves substituted for the creditor who has failed to prosecute the petition with due diligence. If such be the policy underlying the Provincial Insolvency Act, it is all the more necessary and reasonable that when there is a compromise or settlement entered into between the petitioning creditor and the debtors as...a result of which the pennon is likely to be dismissed once for all, there should be an opportunity given to other creditors who would like to safeguard their interests from being jeopardized by the action of the sole petitioning creditor.
It may be certainly difficult under the rules as they stand at present for the court to give any specific notice to the other creditors when a compromise is sought to be entered into between the petitioning creditor and the debtors, but this difficulty can be obviated certainly by court notice being put on the notice board of the court that the petitioning creditor is seeking to settle the matter between himself and the debtors and that the other creditors who are interested and who are already on record or not may take necessary steps to safeguard their interests. Such a thing has not been done in the present case and what is worse, the learned Subordinate Judge has thought it fit to make an order that the sum of Rs. 1680 deposited by one of the respondents before me should be taken away by the petitioning creditor in whole.
Such an order is certainly manifestly unjust to the rest of the creditors, especially when it was brought to the notice of the court in the petition filed by the petitioning creditor that there were other creditors besides to whom payment had been suspended by the debtors. The proper thing for the court would have been to withhold the payment of the amount for a period In order to allow other creditors to come up and then adjudge their rights against the debtors. Such a procedure would alone have satisfied the principle or the policy and scheme underlying the Provincial Insolvency Act that the petitioning creditor acts not merely for himself but also on behalf of other creditors when once he files a petition to adjudicate debtors as insolvents.
21. The upshot of the above discussion is that giving of a notice before permission to withdraw an insolvency petition on account of compromise or understanding or adjustment in between the petitioning creditor and the debtor, is requirement of law looking into the notice and object of the insolvency proceedings. It is duty of the court to give notice to the other creditors by postponing the date of hearing and posting the notice of compromise on notice board. The requirement of giving notice should be read under Section 14 of the Act. The grant of leave should be express; in other words, some material on record to show that the discharge of debts of other creditors have also taken care of . The proceedings before the insolvency court is not in the nature of a lis in between the petitioning creditor and the insolvent only but it is for benefit of entire body of the creditors. Object of law of insolvency is to seize the property of an insolvent before he can squander it and to distribute it among his creditors. The debtor who has committed an act of insolvency within the meaning of Section 6 of the Act is required to discharge not only the debts of the petitioning creditors but also of the entire body of the creditors to save himself from declaration of insolvency.
22. Having cleared the legal proposition, certain factual aspects which were to be noted, were also argued. Creditors namely; Lala Raja Ram and Madho Saran, filed an application for withdrawal of the insolvency petition on 5th of October, 1962 which was allowed then and there, on the same day by the Insolvency Judge. It has also come on the record that evidence was already recorded on September 14, 1962 in the insolvency petition. Shri Prakash Gupta, the learned Counsel for the debtor, submitted that since Life Insurance Corporation was represented through a counsel and in the order sheet dated 5.10.1962 it has been mentioned that the parties were present through their counsel, the order dated 5.10.1962 was passed in the presence of the present applicant. The order dated 5.10.1962 has been reproduced above. A judicial notice may be taken that in the district courts there is a practice to sign the order sheet by the counsel in token of their presence. However, the order sheet dated 5.10.1962 does not contain signature of any counsel. The said order is in two parts. In the earlier part it is in Dev Nagari Script, presumably written by the Peshkar (clerk of the court) recording that the counsel for the parties are present and application B/139 is presented. Thereafter the rest of the entry is in English in the handwriting of the Presiding Officer which reads as follows:
Application for declaring o.p. as insolvent is rejected as prayed for per application 139 A, Cost on parties.
Sd/- illegible.
P. Vishoni 5.10.62
23. A perusal of the above order would show that the Insolvency Judge while passing the above order unwittingly ignored the requirement of Section 14 of the Act presumably it was not brought to his notice by the counsel. He passed the order in a routine manner without keeping in view the requirements of Sections 14 and 16 of the Act. The opp.party could not place before this Court any material to show that the requirement of grant of leave under Section 14 of the Act to withdraw the petition, was there. If that is so then obviously it was a mistake on the part of the court and no party should suffer for the mistake of the courts.
24. Section 16 in no uncertain terms provides that where petitioner does not proceed with due diligence on his petition, the court may substitute a petitioner any other creditor to whom the debtor may be indebted in the amount required by the Act in case of a petitioning creditor. This section is intended to serve as a check on the fraud of either the debtor or the creditor who has presented the application for insolvency. At this stage it is useful to refer model form No. 8, which prescribes proforma for 'an application for withdrawal under Section 14'. The said form is reproduced below:
MODEL FORM No. Application for withdrawal under Section 14.
(Cause - title).
The petition of Shri --------------
R/0....
Most Respectfully: ...
1. That the petitioner made on (date) an application to this Court to be adjudged an insolvent, notice whereof has duly been given to all the creditors mentioned therein and that the said application is still pending and no order of adjudication has yet been made.
2. That since the filing of the said application the petitioner has inherited a rich legacy from ( a certain relation) and expects to be able to pay all his creditors in full and that the petitioner had a discussion over his affairs with said creditors who have all agreed that the case should be taken out of Court in order to give your petitioner an opportunity to realize the said legacy and to pay off his debts therewith.
3. That the law not permitting any withdrawal of any Insolvency case without the leave of the Court, it is necessary to obtain from your Honour the necessary permission sanctioning the desired withdrawal of the case.
Therefore under the aforesaid circumstances and in view of the fact that all the creditors are agreeable to withdrawal of the case, the petitioner prays that your Honour may be pleased to grant leave to the petitioner to withdraw from the aforesaid case and to make such other order or orders as your Honour might thing fit.
And the petitioner as in duty bound shall ever pray.
Affidavit.
I (so and so), son of (so and so), by caste by profession at present residing at...do hereby solemnly affirm and say as follows:
1. That I am the petitioner abovenamed and am well acquainted with the facts of the case.
2. That the facts stated in the above application are all true to my own knowledge.
(Sd.) Sworn before me etc. (Commissioner or Notary)
25. The contents of the said application have to be sworn by a person on an affidavit either of Oath Commissioner or Notary. The application for withdrawal 139/B is not in accordance with the Model Form rather it is poles apart. There is no affidavit of the petitioning creditors in support thereof. The application for withdrawal has been filed on the allegation that Smt. Kamla Bai has paid dues of the petitioning creditors and she is in a position to pay the total dues, therefore, the petition may be dismissed as withdrawn.
26. In view of the legal position as discussed above, it is but apparent that the application for withdrawal of the insolvency petition was filed as the debts of the petitioning creditors were discharged by the debtors. There is no whisper in the aforesaid application that the debtor has discharged the debts of the entire body of her creditors. The order dated 5.10.1962 of the Insolvency Judge is in violation of Section 14 of the Act. It passsed the order without caring about the debts of other creditors. If such an order is allowed to stand it would cause injustice to other creditors and would frustrate the very object of the Insolvency Act and Section 16 will reduce to nugatory resulting in otiose. The argument that leave would be presumed in the facts of the present case while dismissing the petition, cannot be accepted.
27. The appellate court has also held that an application for substitution in view of Section 16 of the Act can be made only in a petition which is alive i.e. pending. The petition in the present case was dismissed on 5.10.1962. Application for substitution of the applicant as creditor in the petition cannot be allowed as the insolvency petition is not alive and is dead in view of the order dated 5.10.1962 cannot be accepted for the reasons more than one. The order dt.5.10.1962 was passed on the same day by the Insolvency Judge without inviting any objection from the other creditors who were arrayed as opp.parties along with Smt. Kamla Bai as debtor, nor there is any evidence to show that they were put to notice about the filing of the application No. 139/B. It has been found above that the court did not grant any leave to withdraw the petition. The order was passed as soon as the application for withdrawal was filed. The applicant filed a review/recall/substitution application before the Insolvency Judge as well as appeal before the court below against the order dated 5th of October, 1962. An appeal is in continuation of proceedings. The principle that the petition which was dead will not be applicable in the facts of the present case as against the order dated 5.10.1962, the applicant invoked the appellate jurisdiction by availing statutory remedy. It has been found that Insolvency Judge did not act properly and in accordance with law while passing the order dated 5.10.1962. He omitted to take into account the object of the Insolvency Act as well as Section 14 of the Act.
28. The Supreme Court in the case of Nyeumula Malludora (supra) has held that an act of insolvency once committed, the insolvent cannot claim to wipe it off by paying sum of his creditors. This is because the same act of insolvency is available to all his creditors. By satisfying one of his creditors, the act of insolvency is not erased unless all creditors are satisfied because of creditors are paid the debtor must prove to meet his liability.
29. The appeal is in continuation of proceedings and the applicant took all possible steps to set aside the order dt.5.10.62 by filing review/recall application as well as appeal. It is open to the appellate court to examine the legality and validity of the order dt.5.10.62. It has been found in the earlier part of this judgment that the order dated 5.10.62 cannot be sustained, the objection that the insolvency petition is not pending becomes meaningless as by setting aside the order dated 5.10.62 the insolvency petition gets revived.
30. The Broom's Legal Maxims (page 73) Actus curie Neminen gravabit - an act of court shall prejudice no man, is attracted. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossbiilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by Apex Court in Raj Kumar Dey v. Tarapada Dey, Gursharan Singh v. New Delhi Municipal Committee and Mohammad Gazi v. State of M.P. and Ors. JT 2000 (4) SC 55 : 2000(4) SCC 342.
31. In 1979 UPR.C.C. 420 it has been held by this Court that where a case has been taken by a court on a date not fixed by it and a decree is passed, an application for recall of the decree shall lie on behalf of the aggrieved person and in such circumstances there is no need to comply with the provisions of Section 17 of the Provincial Small Causes Courts Act which otherwise provides the deposit or furnishing of decretal amount as a condition precedent for the entertain of an application for setting aside the exparte decree.
32. No other point was pressed by the parties. In view of the above the revision is allowed. The order dated 5.10.62 of the Insolvency Judge and 7.10.77 of the court below are set aside. The matter is restored to the file on the Insolvency Judge to proceed with the matter and substitute the applicant as creditor in the insolvency petition and hear and decide it in accordance with law. No order as to costs.