( 1 ) THIS is an appeal purporting to be under S. 75 (2) of the Provincial insolvency Act, hereinafter referred to as the Act. It is preferred by the respondent in Insolvency Case No. 12/67 on the file of the Second Additional district Judge, Bangalore, and is directed against an Order made therein on 4-2-1970 whereby it was held that the insolvency application. was maintainable.

( 2 ) THE few relevant facts are as follows: The appellant was a partner of swarna Silk House a partnership firm consisting of three partners. It is alleged that the appellant was only a working partner and as such entitled to draw not more than Rs. 3,000 a year from the firm, subject to a share in the profits. The respondents' case is that in a certain year the appellant drew Rs. 26,000 and odd in excess of the amount permissible as per the agreement of partnership. It would appear, he had alienated the only property standing in his name in favour of his wife for a nominal consideration of Rs. 1,000. Presumably, it is this conduct on his part that is construed as an act of insolvency by the remaining partners for founding the present petition under S. 9 of the Act.

( 3 ) IT is averred in the petition that the partnership firm was under a process of voluntary winding up. Further, it is stated that on taking accounts for the year ending 22-10-1967, and on the information furnished by their auditor, amount that was actually found due from the appellant to the firm was Rs. 26,053-25. The appellant, therefore, is indebted to the extent of the aforesaid sum.

( 4 ) THE appellant in his objections, inter alia, has stated that he was not a mere working partner and the sum claimed is not due and, unless the accounts of the partnership are finally settled, the appellant cannot be held liable for any sum as a 'debt' owed by him. He has also questioned the act of insolvency alleged and explained the circumstances attending the alienation of his only property in favour of his wife. He has also contended that in the above circumstances, the petition would not be maintainable.

( 5 ) ON a preliminary objection taken by the appellant, as to the maintainability of the petition against a partner, and particularly when the accounts of the partnerhip have yet to be finalised, the learned District judge held that it was a matter for evidence and as such the petitioner cannot be non-suited at this preliminary stage. The present appeal is directed against this Order.

( 6 ) SRI K. S. Narayan, the learned Counsel appearing on behalf of the appellant, has mainly contended that the debt attributed to his client was not a liquidated one and therefore not an ascertained sum. He also contended, rather faintly, that a petition in insolvency would not lie by one partner against another. Moreover, the sum in regard to which the appellant is said to be indebted is clearly subject to a final settlement of accounts and as such cannot be said to be ascertainable by adopting any simple and uncomplicated process. Since insolvency of a person seriously affects a person's status in society, it must be strictly construed against the respondents. In short, the petition cannot be entertained under S. 9 of the Act.

( 7 ) IN support of these submissions he placed reliance on some decided cases They are reported in the following volumes: AIR. 1938 Cal. 377; air. 1939 Cal. 313; AIR. 1943 Mad. 766; and AIR. 1955 All. 352. I shall briefly refer to these cases at a later stage of this judgment. Prima facie, it seems to me, the appeal is not maintainable. The appeal purports to be one made under S. 75 (2) of the Act, This section expressly provides for appeals against any decision or order as is specified in Schedule i. Schedule I of the Act specifies the provisions, the decision or order under which is appealable under S. 75 (2) of the Act. For the present we are concerned with S. 4 of the Act. Indeed, this is the provision which is is said to apply to the facts of the instant case, according to the le

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