THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO.887 OF 2008 DT.12.04.2010 Between: Kotari Venkata Madhusudhana Rao and another …………Appellants Vs. Annavarapu Kalyani and twenty eight others. …………..Respondents. JUDGMENT: Heard Sri E.V.V.S.Ravi Kumar, learned counsel appearing for the appellants and the learned Government Pleader for Appeals, appearing for the respondents. At the instance of both the learned counsel, the appeal is being disposed of. This appeal is filed under Order 43 Rule 1 of C.P.C., assailing the order passed in I.P.S.R.No.271 of 2008, dated 17.03.2008 on the file of the Principal Senior Civil Judge, Kakinada, wherein the application filed by the appellants herein under Order 7 of Provincial Insolvency Act (for short ‘the Act’) seeking to declare them as ‘insolvents’ was returned on the ground that the particulars as required in regard to the residence are not being specified. As against the said order of the court below, the question now arises for consideration is as to whether the petition filed under Order 7 of the Act is maintainable. Since the order of the court below is not an order passed on merits on hearing both sides, the remedy for the appellant is to invoke jurisdiction of this Court under Article 226 of the Constitution of India. Accordingly, we treat this appeal as revision arising under Article 226 of the Constitution of India and not as an appeal filed under Order 43 Rule 1 of C.P.C. The brief facts of the case are that the appellants who are applicants before the court below filed an application under the provisions of the Act to declare them as insolvents. In paras 4 and 5 of the said petition, it is stated as follows: “The petitioners are husband and wife. They are now residing at Prakasam Street, Ramaraopeta, Kakinada. The 1st petitioner worked as Junior Assistant in D.M.S.S.V.H.College of Engineering, Machilipatnam. The 2nd petitioner is the house wife. The 1st petitioner resigned his job and now residing at Kakinada”. The court below was not satisfied that the petitioners are residents of Kakinada and therefore, rejected the application holding that it has no jurisdiction. Having heard the learned counsel and on perusing the material, especially the specific averments made in the aforesaid paras of the petition, we are of the view that before processing the application and proceeding with the disposal of the application, the court below ought to have issued notices to the respondents and subject to any objections taken by the respondents, the court below should have passed orders after going through the necessary material both oral and documentary produced by both sides. Hence, we are of the view that the court below is not right in straight away rejecting the application at the threshold. It is also well established that the allegations contained in the petition should be taken on its face value for the purpose of processing and enabling the other side to take appropriate objections. In the circumstances, the revision petition is allowed. The order of the court below passed in I.P.S.R.No.271 of 2008 dated 17.03.2008 on the file of the Principal Senior Civil Judge, Kakinada is set aside and the matter is remitted to the court below for processing the same and proceed with the same in accordance with law after giving notice and opportunity to both sides. No order as to costs. ________________ B.PRAKASH RAO J., _______________ R.KANTHA RAO J., Dt.12.04.2010 tjs