THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.3638 OF 2009 O R D E R Heard both the counsel. 2. Aggrieved by the judgment and decree dated 5.6.2009 passed by the court of District Judge, Ongole in A.S.No.49/2009 in dismissing the appeal and thereby confirming the order and decree dated 6.3.2009 passed by the court of Additional Senior Civil Judge, Ongole in I.A.No.247/2008 in I.P.No.12/2003 in rejecting the claim of the third party creditor under Section 16 of the Provisional Insolvency Act, 1920 (for short ‘the Act’) to come on record in the place of the petitioner for prosecuting the case; the present revision is filed by the third party - creditor. 3. The 1st respondent herein is the creditor of 2nd respondent/debtor and he filed I.P.No.12/2003 on the file of Additional Senior Civil Judge, Ongole against the 2nd respondent for declaring him as insolvent. The subsequent purchasers from the 2nd respondent, were impleaded as respondents 3 to 6. The case of the present petitioner, who is the third party, is that he filed suit against the 2nd respondent/debtor and obtained decree and also got the property attached. But the 2nd respondent with an intention to defraud the creditors, alienated the property and the 1st respondent who filed I.P. against the 2nd respondent, is not prosecuting the case with due diligence and further got the I.P. dismissed for default and as the respondents 1 and 2 got colluded with each other, he sought to come on record under Section 16 of the Act. 4. 1st respondent, who is the petitioner in the I.P., did not file any counter and the respondents 3 to 6 also did not file any counter. The debtor, who is the 2nd respondent in the I.P., filed counter and contended that only in order to drag on the proceedings, the present petition is field and the petitioner also earlier filed two petitions in I.A.No.891/06 under Order 1 Rule 10 of C.P.C. and later by filing another I.A.No.700/07, sought permission to withdraw the earlier I.A. Therefore, the case of the debtor is that the petitioner is filing application after application, only to drag on the matter and to defeat his rights. 5. The courts below holding that the 1st respondent herein, who is the petitioner in the I.P., is proceeding with the case with due diligence and no need to substitute him with the present petitioner, dismissing the I.A. Hence, the present revision. 6. The learned counsel appearing for the petitioner contended that under Section 16 of the Act, if the petitioner in the I.P. is not proceeding with the case with due diligence, the court may substitute him with any other creditor to whom the debtor was indebted. He submitted that the 1st respondent, who filed the I.P., got the I.P. dismissed for default. He further contended that the time limit of three months prescribed under Section 9 (10) ( c ) of the Act for presenting the application, is not applicable to the creditor who want to come on record under Section 16 of the Act. In support of this contention, he relied on the judgment of the Allahabad High court in GANGA NATH v. NALIM[1]. Rebutting the contention of the counsel for the respondents that the revision is not maintainable and only a civil miscellaneous second appeal is maintainable against the order passed by the lower appellate court, he relied on the judgment of a learned single Judge of this court in CHUPPALA OBULESU v. GOTTIMUKKAL SUBBARAYUDU AND OTHERS[2] and contended that only revision is maintainable. 7. On the other hand, the learned counsel for the respondents contended that the revision petition is not maintainable and only a civil miscellaneous second appeal is maintainable. He further supporting the impugned order, sought for dismissal of the revision. He stated that as per his instructions, the case is at the stage of arguments and is part heard. 8. With regard to the initial objection raised by the counsel for the respondent, it is pertinent to note the judgment of a learned single Judge of this court in GHUPPALA OBULESU v. GOTTIMUKKAL SUBBARAYUDU AND OTHERS (2 supra), wherein an alienation by the insolvent was challenged by one of the creditors for annulment, the same was allowed and in the appeal, the District Court confirmed the same and challenging the same, when a civil miscellaneous second appeal was filed, this court held that only a revision is maintainable and not the C.M.S.A. Hence the objection raised by the counsel for the respondents is not sustainable and is hereby rejected. 9. Coming to the merits of the case, from the record, it could be seen that the 1st respondent filed I.P. to declare the 2nd respondent as insolvent and though the matter was dismissed for default on 6.2.2004, later on an application filed by him, it was restored to file and three witnesses were examined by him. It is to be noticed that the petitioner herein earlier filed I.A.No.891/2006 under Order 1 Rule 10 of C.P.C. to come on record on the ground that he is a proper and necessary party. While the said application was pending, he filed another application in I.A.No.700/2007 under Section 151 of C.P.C. to permit him to withdraw the I.A.No.891/2006 for filing another I.A. under Section 16 of Act. The said application was dismissed on 24.1.2008 without giving any liberty to file another application. Now the present application is filed to substitute him to come on record to proceed with the case on the ground that the petitioner in the I.P. is not proceeding with the case with due diligence. As per Section 16 of the Act, by exercising the discretion, if the court finds that the petitioner in the I.P. is not proceeding with the case with due diligence on a petition, may substitute as petitioner any other creditor to whom the debtor may be indebted in the amount required by this Act in the case of a petitioning creditor. In the present, the facts and circumstances show that the petitioner is proceeding with the case with due diligence, since he got the I.P. restored to file and also got examined three witnesses and as per the submission of the counsel for the respondents, which is not seriously disputed, the matter is at the stage of arguments and is part heard. Hence, the impugned orders of both the courts below does not warrant any interference and the revision is devoid of any merits and the same is liable to be dismissed. 10. The revision is accordingly dismissed. No costs. AVS ------------------------------- 10—11—2009 [1] AIR 1932 Allahabad 147 [2] 2009(4) ALD 796