ORDER
K.S. Radhakrishnan, J.
1. Petitioners in IA. 3965 of 1998 in IP. 2/89 and 3/89 of the Principal Sub Court, Kottayam are the Revision Petitioners. The above mentioned IA, was filed by the 5th respondent in IP.2/89 and 3/89 for and on behalf of other respondents under Section 114 and 151 of the Code of Civil Procedure praying to review the order dated 2-11-1998 passed in the cheque application. Review Petition was allowed by the Sub Court and the order passed in the cheque application dated 2-11-1998 was reviewed and the application was dismissed. Aggrieved by the same first respondent in the IA. who is the first respondent herein, filed CMA. 25 of 1999 before the Additional District Judge, Kottayam. Appeal was allowed and the appellant was allowed to withdraw the amount in deposit on filing a fresh cheque application. Aggrieved by the said order this Revision Petition has been preferred.
2. Sri. P.C. Chacko, counsel appearing for the respondents raised a preliminary objection that the CRP filed under Section 115 of the Code of Civil Procedure is not maintainable against an order passed by the insolvency court in exercise of the powers under Section 4(1) of the Insolvency Act, 1955. Counsel submitted that the first respondent herein had filed an appeal before the District Court under Section 79 of the Insolvency Act read with Order 43 Rule (1)(w) of C.P.C. and that order can be challenged only by way of an appeal before the High Court under second proviso to Sub-section (1) of Section 79 of the Insolvency Act and the High Court could entertain such an appeal in any of the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure.
3. Counsel appearing for the revision petitioner Sri. John Joseph Vettikad on the other hand, contended that since no appeal was preferred under Section 79 of the Insolvency Act and also invoking the provisions of Order 43 Rule (1) CPC this revision under Section 115 of the CPC is maintainable. Counsel submitted that in any view, since the matter is pending before this Court for the last 5 years the CRP can be entertained.
4. I may first examine the question as to whether the CRP is maintainable or not. Insolvency petitions 2 and 3 of 1989 were filed before the Sub Court, Kottayam under Sections 6, 7, 9 and 13 of the Insolvency Act, 1955 for adjudicating the counter petitioners therein as insolvents and to allow the petitioners to realise the entire costs from the counter petitioners and their assets and also for other consequential reliefs. While the petitions were pending the parties entered into an agreement Annexure-A1 dated 2-1-97. Twenty five persons signed including the revision petitioners and the first respondent herein who was 12th party in that agreement. As per terms and conditions agreed upon by the parties the first respondent herein had filed a cheque application for an amount of Rs. 5,50,727/-. Cheque application was allowed by order dated 2-11-1998. IA. 3965/98 was then filed by the revision petitioners here so as to review the order dated 2-11-1998 which was allowed by the Sub Court, against which first respondent herein filed CMA. 25 of 1999 under Section 79 of the Insolvency Act read with Order 43 Rule (1)(w) CPC. However, the present revision petition has been preferred under Section 151 CPC against the order passed by the District Court under Sub-section (1) of Section 79 of the Insolvency Act. We may extract Section 79 of the Insolvency Act for easy reference.
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 was according 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 to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the 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 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.
(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. Appeal was entertained by the District Court under Sub-section (1) of Section 79 of the Act. Second proviso to Section 79 states 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 to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908. Insolvency Act therefore provides only for an appeal against an order passed by the District Court under Sub-section (1) of Section 79 of the Act and no revision is provided under the Insolvency Act to the High Court. Further appeal is provided under second proviso to Section 79 to the High Court only on any of the grounds mentioned in Sub-section (1) of Section 100 CPC. Sub-section (1) of Section 100 of CPC provides that the appeal to the High Court is only on substantial question of law. Further, such an appeal could be entertained only if the court is satisfied that a substantial question of law is involved in the case and that the High Court has to formulate that question. Under such circumstance I am of the view that the CRP filed under Section 115 CPC is not maintainable. Further, no substantial question of law has been raised in this revision.
6. Counsel for the respondents further submitted that even on merits the CRP cannot be entertained. Sri. Chacko, learned Counsel for the respondents submitted that the respondents are only enforcing the agreement entered into between the parties on 2-1-1997. It was on the strength of that agreement that the respondents filed cheque application for Rs. 5,50,727/- on 12-10-1998. Counsel appearing for the revision petitioners submitted that five cheques were handed over to the first respondent as security for the amount mentioned in the agreement dated 2-1-1997. Therefore unless and until those cheques are returned to the revision petitioners agreement cannot be honoured. Counsel appearing for the first respondent on the other hand contended that no cheques have been issued as security for the enforcement of the agreement and those cheques relate to independent transactions. Facts would indicate that parties are already under litigation with regard to the question as to whether those cheques were issued as security for the enforcement of the agreement or independent transaction. I have not expressed any opinion with regard to the proceedings pending before the civil court. That proceedings may take its own cause. However, that will not affect the efficacy of the agreement dated 2-1-1997, which can be enforced independently as rightly found by the court below. Revision petitioner has got a contention that all those five cheques were issued as security for the enforcement of the agreement. It is open to him to raise that contention before the Civil Court. All the same that does not mean that the agreement as such cannot be enforced. Under such circumstance I find no reason to entertain this Civil Revision Petition and the same would stand dismissed.