Debtor must prove inability to pay debts and comply with procedural requirements under the Provincial Insolvency Act, 1920.

ORDER :

(Prayer : Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 16.11.2021 passed in C.M.A.No.7 of 2018 on the file of the District Court, Karur, reversing the Judgment and Decree dated 27.06.2018 passed in I.P.No.59 of 2015, on the file of the Principal Sub Court, Karur, by allowing this Civil Revision Petition.)

1. This Civil Revision Petition is filed as against the fair and decreetal order passed by the learned District Judge, Karur in C.M.A.No.7 of 2018, dated 16.11.2021.

2. The petitioner has filed an Insolvency Petition in I.P.No. 59 of 2015 before the Principal Subordinate Court, Karur, to declare him as insolvent and to vest his B schedule property with the official Receiver. The trial Court, by its order dated 27.06.2018 allowed the application, as against which, the first respondent preferred an appeal before the District Court, Karur and the learned District Judge, Karur by his Judgment and decree dated 16.11.2021 allowed the Civil Miscellaneous Appeal. Aggrieved over the same, the present Civil Revision Petition is filed.

3. The learned counsel appearing for the petitioner submits that the petitioner was doing some vulcanizing work and for the purpose of putting up some construction in the suit schedule property, he borrowed money from the respondents and when he is unable to repay the debt to the respondents, the first respondent attached the property of this petitioner in E.P.No.234 of 2015. Hence, the petitioner filed the above petition under Section 10 of Provincial Insolvency Act,1920, to declare him as insolvent and to vest his property with the official Receiver. The trial Court has allowed the application. However, in the appeal filed by the respondent in CMA No.7 of 2018, the order of the trial Court was reversed by the learned District Judge, Karur by his order dated 16.11.2021, without any valid reasons. The petitioner has produced evidence before the trial Court that he has fulfilled the requirements under Section 10 of Provincial Insolvency Act,1920 and he has also established his inability to repay the debt. The grievance of the petitioner is that the trial Court has rightly allowed the petition filed by the petitioner in I.P.No.59 of 2015, however, it was simply reversed by the first Appellate Court without any independent findings and therefore, the order of the first Appellate Court has to be set aside. The learned counsel has relied on the following Judgments in order to substantiate his contentions:-

1. CRP No.273 of 1972 of Madras High Court in the case of R.Nandakumar Vs.M.V.Krishnan, dated 29.11.1973.

2. (1977) AIR (AP) 346 of the Division Bench of Andra Pradesh High Court, dated 19.04.1976.

3. 1966 (1) MLJ Page 210 K.R.K.K.Krishnappa Chettiar Vs. V.VR. Kasiviswanathan Chettiar and others.

4. 1982 (1) MLJ Page 274, P.Thangaraju Pillai Vs. Periaswamy Pillai and others

5. AIR 1977 Madras 250, Karnagam Vs V.Jayaseelam Chettiar and others.

4. The learned counsel appearing for the first respondent submits that the first respondent filed a suit in O.S.No.276 of 2013, for recovery of money as against this revision petitioner and obtained a decree. When the respondent initiated the execution proceedings in E.P.No.234 of 2015, the revision petitioner filed the Insolvency Petition in I.P.No.59 of 2015 only to stall the execution proceedings. The trial Court allowed the application filed by the petitioner, on the ground that the revision petitioner is having more than Rs.500/- as debt and declared him as insolvent. The first Appellate Court reversed the findings, based on the provisions under Section 24(1) (a) of the Provincial Insolvency Act,1920, that he has not complied with the conditions stipulated therein. According to the learned counsel appearing for the first respondent, the petitioner has created fictitious debts and filed the above Insolvency Petition that his property was brought for sale in the Execution Petition. Though the respondents