The conflicting views on the jurisdiction of the insolvency Court to grant interim protection under Section 5 of the Provincial Insolvency Act before a final adjudication order is made adjudicating the individual as insolvent.

Challenging the order dated 06.08.2007 made in IA No.240 of 2006 in Insolvency Petition No.1 of 2006 on the file of the learned District Judge, Cuddalore, allowing the petition thereby restraining the respondents therein from causing bodily injury or arresting, harassing or threatening the 1st respondent herein, the petitioner who is the 1st respondent in the said Interlocutory application has come forward with this Civil Miscellaneous Appeal.

2. The 1st respondent herein has filed Insolvency Petition No.1 of 2006 seeking to declare herself as insolvent and the said Insolvency Petition is still pending. Along with the said Insolvency Petition, the 1st respondent filed I.A.No.240 of 2006 under Section 4 and 23 of the Provincial Insolvency Act seeking interim protection pending disposal of the Insolvency Petition. The said petition was resisted by the petitioner herein on many grounds including that the Court has no jurisdiction to grant any such interim protection. Having considered the rival submissions, the Lower Court allowed the Interlocutory application thereby granting the relief as prayed for.

3. The main ground raised by the petitioner before this Court is that the order of the Lower Court is without jurisdiction in as much as under Section 23 of the Provincial Insolvency Act, the order for release of a debtor alone could be passed during the pendency of the Insolvency Petition. It is further submitted that before the final adjudication is made declaring the 1st respondent as insolvent, it is not at all within the jurisdiction of the learned District Judge to grant interim protection as has been done in this case.

4. The learned counsel for the appellant relies on the Division Bench judgment of this High Court in Sinnaswami Chettiar Vs Aligi Goundan and others reported in AIR 1924 Madras 893, wherein the Division Bench has held that the insolvency Court has no jurisdiction to pass any such interim order.

5. The learned counsel also relies on the judgment of the Division Bench of Calcutta High Court in Jewraj Kharewalla Vs. Lalbhai Kalyanbhai and Co. reported in AIR 1926 Calcutta 1011 and also the Judgment of Lahore High Court in Basheshar Das Vs. Central Co-operative Bank Ltd., Lahore reported in AIR 1934 Lahore 113 wherein the Court had followed the Division Bench judgment of the Madras High Court. The learned counsel also relies on another judgment of the learned single Judge of the Andhra Pradesh High Court in Sanapala Narasamma and others Vs Mallana Laxminarayana and others reported in AIR 2000 Andhra Pradesh 219 wherein also reference has been made to the above Division Bench judgment.

.6. But the learned counsel appearing for the 1st respondent would submit that the District Judge has jurisdiction to grant such an interim order in exercise of the inherent power under Section 5 of the Provincial Insolvency Act. According to him, though under Section 23 of the Provincial Insolvency Act such an interim protection cannot be granted as the said provision can be made applicable in the case where arrest has already been made, under Section 5 of the Provincial Insolvency Act, the Court has been empowered to grant such an interim protection. To substantiate his contention he relies on the Division Bench judgment of this Court in Nallagatti Goundan Vs Ramana Goundan and others reported in AIR 1925 Madras 170.

.7. This Court has considered the rival submissions. The earliest case of this Court in respect of the jurisdiction of the insolvency Court to grant interim protection is Sinnaswami Chettiar Vs Aligi Goundan and others reported in AIR 1924 Mad 893 cited supra. In the said judgment though no specific reference has been made to Section 5 of the Provincial Insolvency Act, the Division Bench after having dealt with Section 23 as well as Section 31 of the Act has ultimately held as follows:

.“ An insolvent is not entitled to make an application under the Act for protection, before he is adjudicated, unles