Petitioners in IA.3965 of 1998 in IP.2/89 and 3/89 of the Principal Cub Court, Kottayam are the revision petitioners. The above mentioned I.A. was filed by the 5th respondent in IP.2/89 and 2/89 for and on behalf of other respondents under section 114 and 151 of the Code of Civil Procedure praying to review the order dated 2-11-1998 passed in the cheque application. Review petition was allowed by the Sub Court and the order passed in the cheque application dated 2-11-1998 was reviewed and the application was dismissed. Aggrieved by the same first respondent in the I.A. who is the first respondent herein, filed CMA.25 of 1999 before the Additional District Judge, Kottayam. Appeal was allowed and the appellant was allowed to withdraw the amount in deposit on filing a fresh cheque application. Aggrieved by the said order this revision petition has been preferred.

2. Sri. P.C. Chacko, counsel appearing for the respondents raised a preliminary objection that the CRP filed under section 115 of the Code of Civil Procedure is not maintainable against an order passed by the insolvency court in exercise of the powers under section 4(1) of the Insolvency Act, 1955. Counsel submitted that the first respondent herein had filed an appeal before the District Court under section 79 of the Insolvency Act red with Order 43 rule (1)(w) of C.P.C. and that order can be challenged only by way of an appeal before the High Court under second proviso to subsection (1) of Section 79 of the Insolvency Act and the High Court could entertain such an appeal in any of the grounds mentioned in subsection (1) of section 100 of the Code of Civil Procedure.

3 Counsel appearing for the revision petitioner Sri. John Joseph Vettikad on the other hand, contended that since no appeal was preferred under section 79 of the Insolvency Act and also invoking the provisions of Order 43 rule (1) CPC this revision under section 115 of the CPC is maintainable. Counsel submitted that in any view, since the matter is pending before this court for the last 5 years the CRP can be entertained.

4. I may first examine the question as to whether the CRP is maintainable or not. Insolvency petitions 2 and 3 of 1989 were filed before the Sub Court, Kottayam under section 6,7,9, and 13 of the Insolvency Act, 1955 for adjudicating the counter petitioners therein as insolvents and to allow the petitioners to realize the entire costs from the counter petitioners and their assets and also for other consequential reliefs. While the petitions and their assets and also for other consequential reliefs. While the petitioners were pending the parties entered into an agreement Annexure-A1 dated 2-1-97. Twenty five persons signed including the revision petitioners and the first respondent herein who was 12th party in that agreement. As per terms and conditions agreed upon by the parties the first respondent herein had filed a cheque application for an amount of Rs.5,50,727/-. Cheque application was allowed by order dated 2-11-1998. IA.3965/98 was then filed by the revision petitioners here so as to review the order dated 2-11-1998 which was allowed by the Sub Court, against which first respondent herein filed CMA.25 of 1999 under section 79 of the Insolvency Act read with Order 43 rule (1)(w) CPC. However, the present revision petition has been preferred under section 151 CPC against the order passed by the District Court under subsection (1) of section 79 of the Insolvency Act. We may extract section 79 of the Insolvency Act for easy reference.

“79. Appeals: -

(1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come into or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court may appeal to the District Court and the order of the District Court upon such appeal shall be final:

Provided that the High Court, for the purposes of satisfying itself that an order made in any appeal decided by the District Court was ac