Akhaj Khalifa vs Ramlal Marwari and another

Mullick, J.—This is an application under S. 25 of the Provincial Small Cause Courts Act against an order passed by the Subordinate Judge of Manbhum on the 20th January 1923. The petitioner made an application on the 1st August 1917 to be declared an insolvent. On the 1st November 1917 the Court made an order of adjudication. On the 3rd August 1917 a creditor named Nagarmull, the predecessor of the opposite party, got a Small Cause Court decree for Rs. 260. On the 14th May 1921 the minor sons of Nagarmull applied to the Insolvency Court to be entered in the schedule of creditors but on the 11th February 1922 that application was rejected. On the 23rd March 1922 the District Judge called upon the applicant to make an application for his discharge and on the 27th October 1922 as the applicant did not comply with that order the District Judge annulled the order of adjudication. Thereupon the opposite party made an application to the Subordinate Judge for the execution of their Small Cause Court decree. On the 20th January 1923 the Subordinate Judge held that the decree was not barred by limitation and that execution should proceed. Against this order the present application for revision has been made by the applicant.

Now if the Insolvency Act of 1920 applies to the case, then it is clear that under S. 78 the decree-holder is entitled to a suspension of the period of limitation during the insolvency proceedings provided he has proved his debt in the manner required by the Act. It is admitted that he has not proved his debt and therefore if the Act of 1920 applies to the case the decree-holder cannot be permitted to maintain his execution application.

If on the other hand the Insolvency Act of 1907 applies, then there is nothing in the Act which entitles the decree-holder to a suspension of the period of limitation between the date of application, that is, the 1st August 1917 and the date when the adjudication was set aside, namely, the 27th October 1922.

The only mode in which the learned Counsel for the Opposite Party seeks to save limitation is by a resort to S. 14 of the Limitation Act. He points out that on the 16th January 1920 the decree-holder made an application to the Insolvency Court asking that his name should be entered in the schedule of creditors and that on the 11th February 1922 the Subordinate Judge disposed of that application with the remark that it could not be entertained because it had not been supported by affidavit according to law. In my opinion the rejection of that application of the 16th January 1920 was not due to any defect of jurisdiction and S. 14 of the Indian Limitation Act is not applicable.

That being so, time began to run against the decree-holder from the date of his decree, namely, the 3rd August 1917 and on the date when he applied to the Subordinate Judge for leave to execute, the decree was barred.

Therefore whether the Act of 1920 or the Act of 1907 is applicable, in either case the decree is barred by limitation.

In my opinion the learned Subordinate Judge was wrong in allowing the execution to proceed. His order with therefore be set aside and this an Mal cation will be allowed with, plaintiff hearing fee one gold mohur consigned it (sic) had before (sic) note in Form H.

Bucknill, J.

I agree.