TaxTMI 
TaxTMI 
1962 (10) TMI 93
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..... P. Code, or by virtue of its inherent powers under Section 151, C. P. Code. As I shall show presently, there is the authority of the judgment of a learned Judge of this Court in Chandramouleswaran v. Krishnaswami Naidu, AIR 1953 Mad 993 in an instance that was very similar upon the facts, for the affirmative reply to the question with regard to the power of the Court. But the matter is not free from difficulty, particularly in view of certain authorities that have been placed before me by learned counsel for the petitioner. Hence I shall first particularise the essential facts which have led up to the revision proceeding. 2. A certain petitioning creditor, one Fred, J. Dyas, filed I. P. No. 5 of 1960 before the learned Subordinate Judg....
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.... 5 and 16 of the Provincial Insolvency Act read with Order 47, Rule 1 and Section 151 of the C. P. Code, to the Sub Court, praying for a review of the order of dismissal, passed on 3rd October 1960, the setting aside of that order and the restoration of the application to file. He also desired to be substituted as the petitioning-creditor under Section 16 of the Provincial insolvency Act. The Sub-Court heard and allowed this petition. The learned Subordinate Judge has pointed out that his earlier order, recording the compromise and dismissing the insolvency petition in terms of that record, was defective and amounted to an apparent error of law. That is because a petitioning creditor is not merely acting for himself, but for the benefit of ....
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....e inherent powers of the Court, under Section 151, C.P.C. to set aside the earlier order. Reliance is placed upon certain observations in Perumal Moopan v. M. K. Venkatachariar, 42 Mad LJ 563 : AIR 1922 Mad 193. The third ground, which is equally important, is that the respondent-creditor has misconceived his proper remedy in instituting the application before the learned Subordinate Judge for review of the earlier order, and the substitution of the respondent creditor on record under Section 16. The earlier order was appealable under Section 75 of the Provincial Insolvency Act, and it is not in dispute that far wider reliefs are afforded under that section than even under Section 8(1) of the Presidency Towns Insolvency Act, as far as th....
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....ny proceeding in the insolvency petition, for review of that order and for substitution of the respondent creditor under Section 16, either under that section, or under Section 114, C. P. Code read with Order 47, Rule 1, C. P. Code or under Section 151, C. P. Code, Further, the doctrine of inherent power cannot apply, where there is some express statutory provision which would meet a particular contingency or situation. In the decision of the Privy Council in Bisheshwar Pratap Sahi v. Parath Nath it has been laid down that the powers of Court under Section 114, C. P. C. must be read as qualified by the powers in Order 47 Rule 1, C. P. C. for the reason that the Code itself provides that rules in the first Schedule will have effect as ....
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....ther conceivable cases, on the status of the petitioning creditor to invoke the powers of court under Section 151 C. P. Code. It is for this reason that the observations in AIR1953Bom430 are particularly relevant. There it is pointed out that a petitioning creditor did not occupy the same status as a plaintiff who was a dominus lite as far as his suit was concerned. The plaintiff could withdraw that suit, settle his claim or otherwise abandon it. But a petitioning-creditor is, if I may so express it, a kind of trustee for the general body of creditors, bound to serve their interests also by the bona fide prosecution of this petition to adjudicate the debtor as insolvent. Any other view, would mean that the interests of the general body of c....