Article 124 of Limitation Act cannot be applied

Mohan, J.

1. The short facts leading to the appeal are as follows: On the Original Side of this Court under insolvency jurisdiction, I.P. No. 66 of 1977 was filed by a creditor viz. Munuswamy Reddiar for adjudicating the appellant M/S. Raghava and Veera Reddi as insolvents. This was on 6.8.1977. The first respondent viz. Lachhmandas filed Appln. No. 561 of 1977 under Section 92 of the Presidency Towns Insolvency Act, hereinafter referred to as 'the Act' f or substituting petitioning creditor in the place of he original creditor. In 1978, Appln. No. 70 of 1978 was filed by M/s Ajith India Private Limited for substitution under Section 92 of the Act. The petitioning creditor Munuswami Reddiar died on 17.4.1978. No legal representative's were brought on record on 7.9.1978 a request was made on behalf of the petitioning creditor to grant time to bring on record the legal representatives of the deceased petitioning creditor. Ismail, J. (as he then was) declined to grant time and dismissed the main petition I.P. No. 66 of 1977 along with Appln. No. 561 of 1977. Aggrieved by this order, O.S.A. No. 25 of 1979 was preferred by first respondent Lachhmandas in so far as Appln. No. 561 of 1977 for substitution was dismissed. We must at this stage point out that there was no appeal against the dismissal of the main petition I.P. No. 66 of 1977. The matter came before the Division Bench, consisting of Ramanujam, J. and Swamikkannu, J., and the appeal was allowed and the learned Judges observed thus in Paragraph 10 of the judgment, which is reported in Lakshman-doss v. Raghava And Veera.

The learned Counsel for the respondents at this stage points out that in this case the appeal has been filed only as against the order dismissing his application for substitution and no appeal has been filed as against the order of the Court dismissing the insolvency petition as abated, and after the dismissal of the insolvency petition, there is no question of the appellant being substituted as a petitioning creditor even if he succeeds in this appeal. It is true, a substitution can be ordered only when the original petition is pending and not when it has been disposed of. However, if we hold that substitution under Section 92 is possible even in case of death of the original petitioner, it is always open to the appellant to go before the Insolvency Court to have the main Insolvency Petition restored to file and to ask for substitution thereafter.

Against this judgment, S.L.P. No. 10568 of 1980 was preferred. Their Lordships of the Supreme Court (Justice O.P. Chinnappa Reddy, Justice A.P. Sen and Justice Bahrul Islam) dismissed the petition on 11.8.1980. Thereafter, on21.8.1980, an application was taken up in Appln. No. 353 of 1980 for restoration of the main Insolvency Petition. Shanmukham, J. allowed the application on 3.3.1981. It is against the said order dated 3.3.1981, the present appeal has been filed.

2. It is the contention of Mr. T.R. Mani, learned Counsel for appellants, that this Court had no jurisdiction to restore the petition at the instance of Lachhmandas. The power under review cannot be invoked under Section 8 of the Act. Even assuming review is permissible, it is subject to Article 124 of the Limitation Act. Where, therefore, reckoned from the date of dismissal of the insolvency petition viz. 7.9.1978, the application filed on 21.8.1980 is beyond the period of 30 days, prescribed under the said Article of Limitation Act, it ought to have been dismissed on the singular reason as time barred. Of course, if the first respondent in this appeal was interested, in following the procedure as laid down under law, he should have resorted to the procedure under Order 47, C.P.C. because, having regard to the terms of letters patent, it is as much a Civil Court and, therefore, the failure to follow the procedure will mean that the petition was liable to be dismissed. In this case, one peculiar fact that cannot be lost sight of is that no appeal had