IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 13841 of 2009(O) -------------------------------------- AGAINST THE ORDER DATED 06/04/2009 IN IA .137 /2009 IN IP. NO.3/2009 of SUB COURT, PALA .................... PETITIONER(S): ---------------------- T.M.SEBASTIAN, S/O MATHAI, AGED 69, THARAPPEL HOUSE, MADAKKAKUNNU P.O., ELIKULAM KARA AND VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT. BY ADV. MR.JOHNSON MANAYANI RESPONDENT(S): ------------------------ 1. K.L.CONSTANTINE, S/O. K.S.LAWRENCE, AGED 33, KURISADIBHAVAN, THANKASSERI P.O. AND KARA KOLLAM WEST VILLAGE, KOLLAM TALUK AND DISTRICT NOW TEMPORARILY RESIDING AT THAKADIYIL BUILDING, MADAKKAKUNNU P.O, POOVARANI VIA, ILIKULAM KARA AND VILLAGE, KANJIRAPALLY TALUK. 2. STATE BANK OF INDIA, OVERSEAS BRANCH, COCHIN-3, REP. BY ITS MANAGER. 3. FEDERAL BANK LTD., THODUPUZHA BRANCH, THODUPUZHA P.O., REP. BY ITS MANAGER. R2 BY ADV. MR.P.GOPINATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.13841 of 2009 - O --------------------------------- Dated this the 3rd day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To call for the records leading to Exts.P1 to P7 and to issue appropriate orders setting aside Ext.P6 order and confirming Ext.P4 order passed by the learned Sub Judge in Ext.P3 proceedings. ii) Declare that Ext.P4 order is legally sustainable and the modification passed by the learned Sub Judge, Pala as per Ext.P6 is legally unsustainable”. 2. Petitioner has initiated insolvency proceedings as I.P.No.3/2009 to declare the 1st respondent as an insolvent before the Sub Judge, Pala. Petitioner also moved an application under Order XXXIX Rule 1 CPC to restrain the respondent from slaughter tapping the rubber trees in his property which was separately scheduled. The learned Sub Judge initially passed an ex-parte order of injunction. Respondent on entering appearance filed objection to this I.A. contending that the property scheduled W.P.(C).No.13841 of 2009 - O 2 was already under order of attachment before judgment in a suit filed by the very same petitioner. After hearing both sides, the learned Sub Judge passed Ext.P6 order modifying the order of injunction permitting the respondent to slaughter the rubber trees, but prohibiting him from cutting and removing other trees in his property. Impeaching the correctness of that order, the petitioner has filed the above writ petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India submitting that the order is not proper and legal. 3. I heard the counsel on both sides. 4. A preliminary objection is raised by the learned counsel for the respondent that the writ petition is not maintainable as the petitioner has alternative efficacious remedy by way of statutory appeal under Section 79 of the Insolvency Act. Resisting that challenge learned counsel for the petitioner invited my attention to Ext.P7 judgment passed by this Court in an insolvency proceedings. I find that Ext.P7 judgment was passed by this Court in respect of a proceedings where the W.P.(C).No.13841 of 2009 - O 3 procedural matter was involved and not a substantive right of a party. The application moved under Order XXXIX Rule 1 CPC by the petitioner for injunction is not one concerning the procedure but depend upon the substantive right of the petitioner to claim such an injunction against the respondent who is sought to be declared as insolvent. Section 79 of the Insolvency Act reads thus: “79. Appeals:- (1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come into or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court may appeal to the District Court and the order of the District Court upon such appeal shall be final: Provided that the High Court, for the purposes of satisfying itself that an order made in any appeal decided by the District Court wasaccording to law, may call for the case and pass such order with respect there to as it thinks fit; Provided further that any such person aggrieved by a decision of the District Court on appeal from a decision of a subordinate Court under section 4 may appeal tot he High Court on any of the grounds mentioned in sub-section (1) of section 100 of the W.P.(C).No.13841 of 2009 - O 4 Code of Civil Procedure, 1908. (2) Any such person aggrieved by any such decision or order of a District Court as is specified in Schedule I, come to or made otherwise than in appeal from an order made by a Subordinate Court, may appeal to the High Court. (3) Any such person aggrieveda by any other other order made by a District Court otherwise than in appeal from an order made by a subordinate Court may appeal to the High Court by leave of the District Court or of the High Court. (4) The periods of limitation for appeals to the District Court and to the High Court under this section shall be thirty days and ninety days, respectively. 5. There cannot be any doubt as against the order passed under Order XXXIX Rule 1 CPC in invoking proceedings the remedy is by way of an appeal as provided under Section 79 of the Insolvency Act. In Narayana Panicker v. Kunju Pennu and Others (1978 KLT 311) it is made clear that Section 79 of the Insolvency Act is exhaustive as regard right of appeal, forum of appeal, the subject of appeal and the period of limitation W.P.(C).No.13841 of 2009 - O 5 within which the appeal has to be preferred. The petitioner is having a right of statutory appeal to challenge Ext.P6 order before the appropriate forum and the writ petition is therefore found to be not entertainable. Without prejudice to the right of the petitioner to prefer an appeal against Ext.p6 order as provided by the Insolvency Act, if so advised, the writ petition is dismissed. Operation of Ext.P6 shall be kept in abeyance for a period of one week to enable the petitioner to prefer an appeal against that order as provided under Section 79 of the Insolvency Act. Subject to the above observation, this writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-