Judgment:
ORDER
S.S. Subramani, J.
1. Defendants 1 and 2 in O.S. No. 210 of 1986 on the file of Subordinate Judge, Coimbatore, are the revision petitioners.
2. 98 persons joined together in filing the suit against eight defendants, for the following reliefs:. to pass a scheme decree:
(a) Directing the defendants 1 to 6 to deliver and handover the industry, M/s. Everest Engineering Works, functioning at Cross-cut Road, Coimbatore, with all its properties, assets, busi-ness, machineries, raw materials, stock-intrade and finished materials to an administrator or a body of administrators to administer and run the same for such period till all creditors are paid in full or until it is wound up, or in the alternative
(b) To appoint an Administrator or body of Administrators from among the creditors to take an inventory of all the assets and properties of defendants 1 to 6 and take custody and possession of the same, take a full and complete accounts of M/s. Everest Engineering Works and prepare a list of creditors, sell the assets and properties of defendants 1 to 6 by public sale and distribute the sale proceeds to all the creditors according to law:
(c) Directing the defendants to pay the plaintiffs the costs of the suit, and pass such and other orders as may be just and necessary and incidental to the main relief claimed above and render justice.
3. On receipt of summons, defendants 1 to 6 filed a common written statement on 24.8.1988.
4. After the pleadings were over, plaintiffs filed I.A. No. 364 of 1989, to pass a preliminary decree. A preliminary decree was passed on 28.8.1988 and the same was challenged before this Court in C.R.P. No. 2478 of 1989. this Court dismissed the civil revision petition and that has become final. Thereafter, two applications were filed by petitioners as I.A. Nos. 2201 and 2202 of 1991, one to reject the plaint, on the ground that the court has no jurisdiction, and the other to dismiss the suit as not maintainable. The same were seriously opposed by the plaintiffs, and by the impugned order, the lower court dismissed both the applications. The said orders are challenged in these revisions.
5. Before proceeding further with the merits of the case, certain facts may be summarised. 1 have already said that 98 persons filed the suit for appointment of an Administrator. It is seen that on the basis of a preliminary decree passed pursuant to the order in I.A. No. 364 of 1989, one Ramasami was appointed as Administrator at the instance of the present petitioners themselves, and he took charge of all the properties and the assets on 5.12.1989. In the meanwhile, various creditors have also filed suits against the petitioners including the State Bank of India, for recovery of nearly more than two crores of rupees. All the plaintiffs were creditors of the petitioners, and it is their case that although more than 15 lakhs is due to them and in the best interest of all the creditors, they must be permitted to institute the suit for administering the properties and assets of the petitioners. In fact, the suit was filed in a representative capacity under Order 1, Rule 8, C.P.C. The preliminary decree itself was passed by consent given by the petitioners. Subse-quently, the same was challenged before this Court under revision, and the court wanted to see whether the units owned by the petitioners could be revived. Probably, time was granted from time to time. Ulti-mately, the question of revival did not materialise and this Court also found that it is not worthwhile to give more time to the petitioners for the purpose of settlement or for revival of the unit. While disposing of the revision, in paragraph 3 of the judgment, Ratnam,J., as he then was, has held thus:
Though this civil revision petition came up for hearing before this Court more than a year ago, repeatedly at the request of different counsel appearing for the petitioners at different times, the matter had been adjourned several times in order to enable the petitioners to explore the possibility of reviving the industry. Though counsel assured the court that effort would be made to restart the industry closed in 1986, no definite or concrete proposals were placed before the court. Even to-day when learned Counsel who appeared for the petitioners was asked whether he has any definite, useful and practical proposal for the re-vival of the industry, he stated that there is none. Besides, it is not in dispute that on 9.7.1986 one Ramaswami was appointed as Administrator at the instance of the petitioners and he took over on 5.12.1986 and it is seen from his report which was placed before court that he had approached the State Bank of India, the Industrial Development Bank of India and other Financial Institutions for securing the necessary funds required for the revival of the industry, but that he had not succeeded. Ultimately, the Administrator quit stating that it was beyond his capacity to revive this industry. Even thereafter, the efforts made by the petitioners have not borne fruit. The Industry had remained closed from 1986 onwards and to put the machinery in working order and condition after the lapse of so many years, large amount would be necessary. Besides, the 99th respondent-Bank of India, had advanced substantial amount not only to Everest Engineering Works but also to its sister concern and several suits, viz. O.S. Nos. 300 of 1989 and 825 to 827 of 1988 are pending for the recovery of the amounts advanced. The total amount claimed in the suits filed by the 9th respondent is stated to be nearly 2.27 crores of rupees, though the petitioners claim that some amounts had been paid. Besides, to the members of the 100th Respondent's Association representing a large body of depositors, a sum of four crores of rupees is stated to be due. A sum of Rs. 15,00,000 is stated to be due to Respondents 1 to 98. ft is thus seen that there is absolutely no prospect of a revival of the industry, as the attempts made to secure funds therefore had totally failed on the oilier hand, the 99th respondent State Bank of India, a large body of depositors from public (100th respondent) and Respondent 1 to have to be paid very large amounts. In the impossibility of reviving the industry the only course which would subserve the industry of all parties and justice, is to appoint Administrators to take over the assets, dispose them of and apply the proceeds towards the payment to the creditors. It is also stated at the Bar that the workman have to be paid and there is also a large bill. In the absence of any possibility of the revival of the industry and its generating funds, there is no change of any of the workman being paid anything at all. However, by the sale of the assets and the applicability of the proceeds, there is some chance of the workman being paid at least a portion of the amount due to them over the course of the year. Considering the aforesaid aspects and also the consent given by the petitioners to the passing of a preliminary decree recorded in paragraph 8 of the order of the court below. The petitioners cannot be heard to complain about the preliminary decree passed. Through the first petitioner had been in control of the industry all along he had not been able to turn it successfully, or profitably and there is, therefore no substance in the objection that he had not been associated in the Board of Trustees. Likewise, the point that petitioners should be permitted to arrange for and participate in the sale of all or any of the properties is without substance, as the appointed administrations would be the persons to look they so desire can always render their assistance and help to the Administrators in the order to secure the maxi-mum benefit to the financial institutions, other creditors and the workman. But on that ground they cannot be permitted to interfere with the per-formance of the duties by the Administrators. Even though an objection was raised that the civil revision petitioner is not competent, in view of the consideration of the matter on its merits, as stated earlier, it is really unnecessary to go in to this aspect, as, either as a revision or even as an appeal, no case is made out on merits. The civil Revision petition is, therefore, dismissed. There will be no order as to costs.
[Italics supplied]
The preliminary decree passed by the lower court was confirmed by this Court in C.R.P. We may note that the preliminary decree itself was passed on the basis of the consent of the court below as well as in the revision. It was thereafter, the present applications were filed, one to reject the plaint as one without ju-risdiction and the other to dismiss the suit as not maintainable.
6. Learned Counsel for the petitioners submitted that an administration suit is not maintainable in civil court unless the same relates to the estate of a deceased person. In this case, such a suit has been filed against living persons who happen to be debtors of various plaintiffs. According to learned Counsel. either the suit must be one for recovery of money or the proceedings must be under Insolvency Act. When an effective remedy is provided under the common law, filling suit for the appointments of an Administrator cannot be entertained. Learned Counsel further submitted that even though preliminary decree has been passed and that has merged in the Order under Revision, when the jurisdiction goes to the root of the matter, the same can be questioned even in execution. Therefore, the mere passing of a preliminary decree will not oust the jurisdiction of the court to consider the same.
7. Learned Counsel for the respondents submitted that this Court is invoking the powers under Section 115, C.P.C. and if it is a shown that the interest of justice has been taken into consideration by the court, the powers under Section 15, C.P. C should not be involved. He further said that third parties' rights are also affected after the preliminary decree was passed, and if at this stage, the suit is dismissed as not maintainable, even persons who are not parties to the suit will be affected thereby. Again for more than 11 years petitioners themselves have acquiesced to the proceedings taken by the trial court, and if at this stage, the suit is dismissed, plaintiffs will be without any remedy. He further said that an administration suit is maintainable even against living persons, and the same could be properly entertained. Learned counsel further submitted that under no provision of the Insolvency Act, a civil suit is not barred even though the relief sought for in the plaint can also be taken into consideration by Insolvency court.
8. I will first consider the question whether an ad-ministrative suit is maintainable. In Nazarali v. Fazlanbibi : AIR1975Guj81 , the court considered a similar question. In that case, their Lordships followed an earlier decision of the Lahore High Court reported in Sheikh Mahbub Aba v. Razia Begum A.I.R. 1950 Lah. 12. In paragraph 19 of the judgment, the court considered the entire case law on the point and held that any suit for administration is not only maintainable against the estate of a deceased person, but also against any property or estate of any person, and there is no bar under Section 9 of the Code held in that case thus:
Coming to Mr. M.R. Oza's contention that Order 20, Rule 13 of the Code of Civil Procedure is partly substantive and partly procedural law and thus indicates the limited scope of an administration suit, we must say that it has no merit. Order 20, Rule 13 finds its place in a particular scheme of the Civil Procedure Code. It is placed under Order 20 which provides as to how the judgments and decree are to be pronounced in different cases and what are to be the contents of various decrees and is merely procedural in character as we shall pres-ently examine. The power to entertain an admin-istration suit is given by Section 9 of the Code. Cog-nizance of administration suits is not barred either expressly or impliedly. Rule 13 provides merely a procedure for drawing up a decree in administration suit. Sub-rule (1) provides: 'Where a suit is for an account of any property and for its due administration under the decree of the court, the court shall before passing the final decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made and giving such other directions as it thinks fit'. Sub-Rule (1) thus merely lays down a procedure which is to be followed in passing a preliminary decree in an ad-ministration suit where accounts of the property are to be taken for the due administration of the estate. The preliminary decree is to be passed before the final decree is passed and some inquiry is contemplated before passing a final decree in a suit. Sub-rule (2) provides: 'In the administration by the court of the property of any deceased per-son, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of a annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be a paid out of such case would be entitled to be paid out of such property may make such claims against the same as they may respectively be entitled to by virtue of this Code'. Sub-rule (2) thus provides the proce-dure to be followed in the case where in an ad-ministration of the property by the court, the property proves to be insufficient for the payment of debts and liabilities of the deceased etc. It is clearly a procedural law. It cannot be said to lay down the substantive law. As observed by a Division Bench of the Lahore High Court in Sheikh Mahbub Aba v. Razia Begum A.I.R. 1950 Lah. 12 :
The power to entertain an administration suit is given not by Order 20, Rule 13, but by Section 9 of the Code, which provides that 'the courts shall (subject to the provisions herein contained) have ju-risdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred', and if a suit for the administration of an estate is not barred expressly or impliedly by any provisions of law, it must be entertained. It would appear that an administration suit need not necessarily relate to the estate of a deceased person, This conclusion may be a drawn from the language of Sub-rule (1) of Rule 13 of Order 20, which speaks of a suit for an account of any property and for its due administration under the decree of the court' without any refer-ence to a deceased person, and the force of this language is brought out specifically in Sub-rule (2) which makes a special provision for 'the ad-ministration by the court of the property of any deceased person. ' It has been further observed by the Lahore High Court at P. 16 of the report: 'It thus seems that the distribution of the residue among the successors of a deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of the propositus, and as the distribution of the residue forms part of the administration of an estate, it clearly falls without the province of an administration suit, Even the Divine Book under which the Sirajiyyah relies insists on administration before the heritage ever devolves that the property of a deceased Muslim vests in his heirs immedi-ately after his death is considerably tempered by the injunction that the heir is entitled only to the reside after the payment of debts and legacies and necessarily involves the administration of the estate, such administration is implied in the very words of the Holy Quran and of authentic texts like the Sirajiyyah.We are in respectful agreement with the aforesaid Lahore view. In our opinion, Order 20, Rule 13 provides merely a procedure. The forms pleadings to be found in Appendix A to the Code in Forms 41, 42, 43, are mere model forms and not statutory forms as was sought to be contended by Mr. Oza. A reference to Order 6, Rule 3 shows that the forms in Appendix 'A' are to be used when applicable, and when they are not applicable, the forms of the like character, as nearly as may be, shall be used for all pleadings. The forms of the decrees to be found in the First Schedule in Appendix D of the Code, form of preliminary decree being No. 17 and form of final decree being No, 18 are also model forms It cannot be against that decree must conform to judgment. Order 48, Rule 3 provides that 'The forms given in the appendices, with such variation as the circumstances of each case may require shall be used for the purposes there in mentioned. ' It is thus clear that the forms in the various appendices of the Civil Procedure Code are not statutory forms. Mr. Oza was thus not right when he tried to draw upon these forms and based a contention that the forms indicated the limited nature and scope of an administration suit.
9. A Division Beach of the Nagpur High Court also taken the same view in the decision reported in Goswami Mameshpuri v. Madhukar A.I.R. 1953 Nag. 276, wherein it was held thus:
Enforcement of claims against strangers may not legitimately fall within the scope of an administration suit; but collection of the assets in the hands of persons who are properly joined as defendants in an administration suit is not outside its scope. Such persons are the heirs, legatees, creditors, executors, etc., (object, nature and scope of ad-ministration suits explained).
10. Similar view has been taken by other High courts also, and I do not want to multiply the case-law here.
11. Learned Counsel for the petitioners did not urge that suit filed by the plaintiffs is not of civil nature and learned Counsel also did not point out whether there is any provision under the Insolvency Act barring such a relief.
12. In fact, in the latest decision of the Supreme Court reported in the latest decision of the Supreme Court reported in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma (1995) 4 S.C.C. (Supp.) 286, their Lordships considered as to what is the suit of a civil nature.
13. It is held in the above case thus:
One of the basic principles of law is that every right has a remedy. Ubi jus ibi remedium is the well-known maximum. Every civil suit is cogni-zable unless it is barred. The expansive nature of Section 9, C.P.C., is demonstrated by use of phrase-ology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly impliedly barred. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for en-forcement of right renders it nugatory. The heading which is normally key to the section brings our unequivocally that all civil suits are cogni-zable unless barred. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word' shall' makes it mandatory. No court can refuse to enter-fain a suit if it is of description mentioned in the section. That is amplified by use of expression' all suits of civil nature'. The word 'civil' according to dictionary means 'relating to the citizen as an individual; civil rights'. In law it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal:. Revenue, tax and company, etc., were added to it later. But they too pertain to the larger family of 'civil' the width of the word 'civil' has been stretched further by using the word 'nature' along with it. That is even those suits are even of civil nature. The word 'nature' has been defined as 'the fundamental qualities of a person or thing; identity or essential character; sort, kind character' It is thus wider in content. The word 'civil nature' is wider than the word 'civil proceeding. The section would, therefore, be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of civil nature.
14. If it is a suit of civil nature, and a reading of Order 20, Rule 13, C.P.C. also provides for filing such suits, there cannot be a bar for entertaining the same. In a decision reported in Chandanben v. The Receivers : AIR1974Guj163 , their Lordships considered the bar of a civil suit when a parallel proceeding is pending consideration under the Provincial Insolvency Act. Section 4 of the Provincial Insolvency Act gives power to that court to decide all questions, whether of title or priority, or of any nature whatsoever, and whether involving matters of law or of fact. which may arise in any case of insolvency coming within may arise in any case of insolvency coming within the cognizance of the court; or which the court may deem it expedi-ent or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case'. Even in such a case, their Lordships said that civil suit is never barred, even though such question also could be considered under Insolvency Law. In that case, their Lordships followed an earlier decisions of the Bombay and Calcutta High Courts, including a decision of this Court reported in Sevadappa Gounder v. K.V. Narayanaswami : (1940)1MLJ647 . In that case, their Lord-ships gave emphasis to the decision reported in Dinanath Shaligram Marvadi v. Maroti Totaram Shimpi : AIR1959Bom10 , by Justice Mudholkar, as he then was, wherein it was held thus:
What Section 4 purports to do is to confer power on the Insolvency court to decide certain questions, and where a question is decided by it then under Sub-section (2) of Section 4 its decision shall be final and binding and can no longer be challenged in any another proceeding. It does not confer exclusive jurisdiction on the court to deal with such questions. Hence a suit by the creditors for a declaration that the property purchased by them in execution of a decree against the insolvent is not liable to attachment and sale in insolvency proceedings pending against him will not be barred if the question raised in the suit has not been decided by the Insolvency Court.
[Italics supplied]
15. In view of these decisions, I do not think that the presentation of a plaint and institution of a suit for the appointments of an administration is barred by any law. The court had jurisdiction to decide the same, and in fact, a preliminary decree was also passed and confirmed by this Court. After getting a preliminary decree passed on consent it is too much on the petitioners now to raise an objection on the allegation that the suit is not maintainable, or make an attempt to have the plaint rejected. By stating so, I should not be understand as saying that by consent, a jurisdiction is conferred. Even without their consent, and there was a proper adjudication by passing a preliminary decree. The present application filed by them is, therefore, barred by res judicata.
16. Learned Counsel for the petitioner submitted that the decision of the Gujarat High Court which follows an earlier Allahabad High Court's decision, was one where the administration suit was instituted regarding the estate regarding administration can be only an obiter. I do not think that such a contention is correct. At any rate, learned Counsel for the petitioners was not in a position to urge that the suit is otherwise barred under Section 9 of the Code of Civil Procedure. If it is a suit of civil nature, and if it is not otherwise barred by any law, it could be entertained. Order 20, Rule 13, C.P.C. permits the court to entertain such suit. So, even if we accept the argument there cannot be any change in the result. Therefore, I reject the contention of learned Counsel for the petitioners.
17. Section 115, C.P.C. is a power of superintendence by this Court. The same should not be exercised in favour of a person who himself agreed to get such an order. That apart, even if there is any illegality, unless the petitioner also says that there is a failure of justice, the power under Section 115, C.P.C. cannot be invoked, If any error, this Court will refuse to interfere under Section 15, C.P.C. When the court below had jurisdiction to decide the matter and that exercised that power properly which was confirmed by this Court also, the power under Section 115, C.P.C. should not be exercised.
18. The decision reported in Awadh Kishore Singh v. Brij Bihari Singh : AIR1993Pat122 also makes it cleat that their Lordships have taken into consideration the interest of justice between the parties As per amendment by Act 104 of 1976 to the Code of Civil Procedure petitioners must show that they are entitled to invoke Section 115, C.P.C. For that they have to satisfy three conditions: (1) The case comes within any of the three clauses of Sub-section (1) of Section 115 of the Code, (2) That against the order impugned, no appeal has been provided either to the High Court or to any court or to any subordinate thereto, and (3) That the order impugned should be such that if had been made in favour of the party applying for revision would have finally disposed of the proceeding/suit, or if the order impugned is allowed to stand the same would occasion failure of justice or cause irreparable injury to the party against whom it was made. If these three conditions are not fulfilled, Section 111, C.P.C. also should not be invoked.
19. In State of Madras by the Collector of Thanjavur v. Ramanatha Rao : (1968)2MLJ164 , this Court also held that the powers under Sec 115, C.P. Code intended to subserve and not to defeat the ends of justice. When substantial justice has been done by the court below, this Court will not interfere in revision notwithstanding that the reasons given by the court below the impugned order are not correct. Interference would be warranted only if injustice hard-ship would result from failure to interfere'. 20. Petitioner's counsel has miserably failed to sub-stantiate a case failure of justice, If it is not so, and if the court had jurisdiction to pass a preliminary decree, I do not think, that I should interfere under Section 115, C.P.C. These revision petitions are, therefore, dismissed with costs.