An application for restoration of an application under Section 4 of the Provincial Insolvency Act is not barred by limitation if it is not filed within 30 days from the date of the order dismissing the application, provided that the applicant had no notice of the date of hearing of the application.

JUDGMENT - 1. This application is filed by the petitioning creditor against the order of the learned Insolvency Judge who allowed the application of opponent No. 2 for restoration of his application under Section 4 of the Provincial Insolvency Act for a declaration that the moveable property which was seized by the Receiver in Insolvency from his possession was of his ownership and that accordingly, it should be returned to him. This application was made on 1st November, 1958, that is, on the same day on which the Receiver had taken possession of the property. For about a year arid five months after the presentation of this application no action was taken by the Insolvency Court thereon. In the meantime, it appears the Receiver had made his report in regard to different aspects of the insolvency proceedings. Among other things, he had prayed in his report that the application made by opponent No. 2 being Ex. 19 in the case should be taken up for hearing and a date might be fixed for the purpose. This report by the Receiver was made on 12th January I960. Thereafter, the insolvency proceedings were adjourned on one or two occasions and they were resumed once again on 22nd April 1960. On that day the insolvent remained absent, and his pleader also was not present in Court. The petitioning creditor, however, was present with his pleader.

The Court finding the insolvent absent from the Court on that day, annulled the order of adjudication, but at the same time it also passed an order that the Receiver should continue to administer the estate of the insolvent. Among the items recorded in the Roznama of this date, one was that Ex. 19 being the application by opponent No. 2 was fixed for hearing on 14th June 1960. The Roznama of the day, however, did not show that either opponent No. 2 or his pleader was present in Court on that day. On 14th June 1960 when application Ex. 19 was taken up for hearing and final disposal by the Court, opponent No. 2 was not present nor was his pleader and, therefore, the Court by an order rejected the same. An application for setting aside this order and for restoration of that application was made by opponent No. 2 on 14th October 1960. This application was resisted, not by the Receiver in insolvency but by the petitioning creditor, obviously because, if the application was restored and also allowed, the moveable property which was seized by the Receiver would be returned to opponent No. 2 and to that extent the interest of the petitioning creditor would naturally suffer. The resistance, to the application was based upon the ground that since the application for restoration was not made within 30 days from the date of the order dismissing the application for default, it was barred by time. It may be noted, however, that the application for restoration was based upon the ground that opponent No. 2 could not remain present at the date of the hearing of the application Ex. 19 on account of the fact that no notice of the date of hearing was given to him by the Court, and that when he came to know that the order of adjudication was annulled, he thought that his application had automatically become superfluous and that the property seized from him by the Receiver would in due course be returned to him. Opponent No. 2 also gave evidence in support of this application, and the petitioning creditor, too, gave evidence in support of his opposition. The insolvency Court considered this evidence as also the arguments advanced on behalf of both the parties to the application and held that the application was clearly barred by time if it was to be regarded as one falling under Rule 9 of Order 9 of the Civil Procedure Code and governed by Article 163 of the Limitation Act. It further held that in the circumstances of the case, it was necessary that the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code should be exercised and accordingly, the application for restoration was allowed. It is

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