( 1. ) THIS Civil Miscellaneous Appeal is filed against the order made in I.A. No. 550 of 2010 in I.P. No. 48 of 2004 filed under Order 18 Rule 1 and Section 151 C.P.C. directing the first respondent to begin the evidence.

( 2. ) THE parties are referred to in the order as per the rank given in the insolvency petition. THE petitioner/creditor filed insolvency petition against the first respondent for declaring him as insolvent and to appoint an official receiver to take over the properties belonging to the first respondent to administer the same. THE petitioner has come forward with insolvency application on the ground that the first respondent is indebted to the petitioner and others to the tune of Rs.2,59,00,000/-as per the particulars contained in "A" Schedule and the first respondent is owning movable and immovable properties worth about Rs.1,48,85,000/- as per the particulars contained in "B" Schedule and the total liability of the first respondent exceeds the total assets owned by him and he entered into sale transactions with third parties in order to defeat the right of the creditors and has thus committed an act of insolvent and is hence to be declared as insolvent.

( 3. ) ACCORDING to the petitioner, the other respondents 2 to 15 are the persons to whom the first respondent is alleged to be indebted. The petition is seriously contested by the first respondent by denying creditor and debtor relationship between the petitioner and the first respondent or between either of the respondents 2 to 15 and by denying his liability to pay any money to either of the respondents. The suit filed by the petitioner for recovery of Rs. 5,00,000/- is also being seriously contested by the first respondent by denying the claim made in the suit. Among the so-called creditors arrayed as respondents 2 to 15 in the LP, two of them died during the pendency of LP and others remained ex parte and LP was being contested by the petitioner and the first respondent. The petitioner has also during the pendency of LP filed I. As seeking order or injunction against the first respondent from alienating the property and ex parte injunction was granted and when the ex parte injunction was in force, the first respondent has also admittedly disposed of the property. While according to the petitioner, the sale transaction is effected during the pendency of insolvency proceedings with an intention to defraud the creditors and to defeat their right and is lacking bona fide, the first respondent has been seriously denying the same.

( 4. ) ACCORDING to the first respondent/debtor the sale transaction is bona fide in nature and without any mala fide intention and it involves no element of cheating or intention to defrauding the creditors. It is his further contention that as the respondents 2 to 15 excluding the, respondents who are not alive remained ex-parte there was no other particulars furnished to prove the money transaction between the petitioner and the other respondents 2 to 15 as mentioned in the petition and as the first respondent is allegedly indebted to the petitioner to the tune of Rs. 35,00,000/- and as the property in the hands of the first respondent as per the particulars mentioned in the "B" schedule is to the tune of Rs. 1,48,85,000/-, alienation of property referred to in the petition cannot be said to be to cheat the creditors and in the event of money suit being decreed in favour of the creditor, there are sufficient properties available to realise the money decree and the debtor has not committed any act amounting to act of insolvency and he cannot be adjudged as insolvent. With these pleadings, the petition is taken up for trial and at that time the petitioner/creditor has come forward with an application under Order 18 Rule 1 C.P.C to direct the first respondent to first adduce his evidence to prove that the properties available in his hands are sufficient enough to discharge his liability if any.

( 5. ) THE petition is seriou