1. The appellants in the Civil Miscellaneous Appeal who are the petitioners in the Civil Revision Petition attack an order refusing to set aside another order adjudicating the first appellant as an insolvent, the second appellant being one of the alienees in whose favour the alienations challenged in the insolvency are made. The adjudication was made by the learned District Judge in appeal reversing an order of the Subordinate Judge who dismissed the petition.
2. It is argued that no appeal lies from an order under Order 9, Rule 13, Civil Procedure Code, read with Section 75 of the Provincial Insolvency Act, on the ground that the order now under appeal is really itself an appellate order of the District Judge. It seems to me that this contention is not tenable. Sub-Section 3 of Section 75 of the Provincial Insolvency Act reads:
Any such person aggrieved by any 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.
3. It may possibly have been the intention underlying this provision that it should apply only to orders of the District Court in the exercise of its original jurisdiction, but that is not what the section says. I do not think it can be contended that the order refusing to set aside an ex parte order in appeal is itself an order in appeal, though it might be contended that it-is an order passed in the exercise of the appellate jurisdiction of the District Court. I have been referred to two decisions Venkata Narasimha Rao v. Suryanarayana (1925) 50 M.L.J. 75 and, Salar Beg Saheb v. Karumanchi Kotayya (1925) 23 L.W. 538 to the effect that a proceeding under Order 9, Rule 13 is not a proceeding in the suit but quite independent of the suit, the suit itself having been disposed of. On the analogy of these rulings it must be held that a proceeding under Order 9, Rule 13 to set aside an ex parte decree in appeal is not a proceeding in the appeal the appeal itself having terminated. I therefore hold that an appeal does lie.
4. On the merits it appears that only one notice was sent to the appellants of the proceedings before the District ,Court This notice purports to have been affixed to their houses on information that they were absent in various places. There is a discrepancy between the information as embodied in the affidavit sworn before the deputy nazir and as embodied in the return itself. This discrepancy may be due to no more than carelessness. A more serious contention is that whereas the appellants swear in an affidavit that they had not been absent at the places alleged and on the date alleged and that there had been no proper affixture, there was no evidence contra other than the written affidavit of the process server sworn before the deputy nazir. No doubt that affidavit is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But when the parties concerned deny the fact of service it is in my opinion desirable that at any rate the process server who purports to have served the notice should be put into the witness box and that those who deny service should have been given an opportunity of cross-examination. It is also pointed out that the learned District Judge has not himself or by deputy made any declaration that service was sufficient, It does not seem prima facie likely that the present appellants would have wilfully absented themselves. It is true that the first appellant allowed the petition to proceed ex parte in the original Court, but the petition for his adjudication having been dismissed there was a prima facie likelihood that he would have tried to retain the position which had resulted from the dismissal of the petition. The learned District Judge refused to go into the application of the second appellant the alienee. I am not sure that this was a correct procedure, for the alienee having been made a party to the insolvency petition which attacked his alienation, it was at least arguable that the decision in that matter would operate ex parte against him. In such circumstances though he might have a right of appeal, the matter coming under Section 4 of the Provincial Insolvency Act, I see no reason to deny him the right of application to set aside the ex parte order by which he had been adversely affected. Since the allegation that the appellants had notice depends entirely on a single return unsupported by oral evidence and gaining very little support from circumstantial evidence, I am of opinion that the learned District Judge would have been well advised to have set aside the ex parte order and given the appellants an opportunity of stating their case.
5. In the result therefore the appeal is allowed and the ex parte order is set aside and the District Judge is directed to restore the appeal to his file and dispose of it on its merits. The respondents will pay the costs of the appellants here and in the court below.
6. No orders are necessary on the connected Civil Revision Petition.