Entitlement of insolvent to question the acts of Receiver in appeal u/s 75.

Horwill, J.-The present appeal, purporting to be under section 75 of the Provincial Insolvency Act, is against the order passed by the District Judge of Nellore in an application filed by the appellants (insolvents) under sections 4 and 5 of the Act, praying that a certain composition scheme be declared to be pending, that two interlocutory applications which were disposed of be reopened, and that Chalavadi Ramayya, the respondent, be removed from the schedule of creditors and directed to deposit a sum of Rs. 386-10-8 into Court. At the end of paragraph 10 of his judgment, the learned District Judge dismissed the application as clearly untenable.

The main question argued before me is a preliminary one; whether an appeal lies on the ground that the insolvent has merely a spes and no legal interest in the property and is not therefore a person aggrieved. Reference has been made to the Full Bench decision of this Court in Harirao v. Official Assignee, Madras1, where in considering the question whether an appeal lay under section 8(2) of the Presidency Towns Insolvency Act by an insolvent, it was held that the insolvent was not a person aggrieved and that an appeal did not therefore lie. Section 8 (2) enacts that,

“Orders in insolvency matters shall, at the instance of any person, aggrieved, be subject to appeal as follows......

The wording is thus seen to be very different from that of section 75 of the Provincial Insolvency Act, which says,

”the debtor, any creditor, the receiver, or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a court subordinate to a District Court may appeal......

In considering the question before them the learned Judges were referred to an earlier decision of this Court in Sivasubramania Pillai v. Theethiappa2, in which it was held that an adjudicated insolvent was entitled as a person aggrieved within the meaning of section 46(2) of Act III of 1907, to appeal against the order admitting a person as a creditor; the reason given by Oldfield, J., in his judgment being that the insolvent would eventually be entitled to any surplus remaining after the creditors who had proved had been satisfied. That argument was clearly inconsistent with the reasoning in the Full Bench case, as Krishnan, J., pointed out. Moreover, the decision in Sivasubramania Pillai v. Theethiappa2 was one based on the old Act, whereas in the present Act the word “insolvent” in section 33(3), which is the relevant sub-section, was replaced by the word “receiver”; so in view of the Full Bench decision in Harirao v. Official Assignee, Madras1 and the change of the wording of section 33(3) Sivasubramania Pillai v. Theethiappa2, can hardly be said to be good law. The law was considered by King and Bell, JJ., in Subramama Pillai v. Valliamma3, where they very pertinently pointed out that the argument that the insolvent would never be a person aggrieved would mean that section 68 would never have any application to an insolvent, although the Legislature clearly intended insolvents to have a right under that section. The wording of section 75 is not quite the same as section 62, because the word “debtor” is used instead of “insolvent”; but the word “debtor” would clearly include an “insolvent”. Venkataramanayya v. Banearayya4, was apparently a case under section 75(1) of the Provincial Insolvency Act, despite the headnote to the contrary; and there the principle laid down

*17th August, 1948. by the Full Bench decision under the Presidency Towns Insolvency Act was applied to the corresponding provisions of the Provincial Insolvency Act, though there is nothing in the judgment which indicates that the attention of the learned Judges was drawn to the difference in the wordings of section 75 of the Provincial Insolvency Act and of section 8(2) of the Presidency Towns Insolvency Act. The learned Judges, however, noted that the Full Bench had approved of the decision in Sakhawat Ali v.