Chathangali Rarichan vs Puvvammparambath Kunhamu and Another

Ananthakrishna Iyer, J.—The application filed by the decree-bolder oa 17th March 1932, for execution of the decree in S.C.S. No. 234 of

1932, has-been dismissed by the learned District Munsif on the ground that execution of the decree is barred by limitation. The learned District

Munsif held that E.P. No. 173 of 1930, should not be taken to be a step in aid of execution, because the defendant was an undischarged insolvent

at that time. In this revision petition filed by the decree-holder, it is argued that there was Article I.A. No. 424 of 1930 filed by the decree-holder

on 23rd July 1933, for leave to execute the decree against the defendant u/s 28(2), Provincial Insolveney Act, and that leave was granted'' to the

decree-holder on 26th August 1930. It is argued by the petitioner decree-bolder that assuming that E.P. No. 173 of 1930 would not be available,

as the starting point for limitation yet;,, as I.A. No. 424 of 1930 was filed within three years of final orders passed on 5th January 1928, in the

previous I.A. No. 210 of 1927, the present application was not barred as it was filed within three-years from the order passed on I.A. No. 424 of

1930. As the respondent is unrepresented, the learned advocate for the petitioner very properly (and I am obliged to him for that) drew my

attention to the fact that in Kuppuswami Chettiar v. Rajagopala Aiyar AIR 1922 Mad 79, it was decided by a Bench of this Court that an

application to be a step-in-aid of execution should be made in a pending execution application. Ramesam, J.''s view to the contrary in Sankara

Nainar v. Thangamma AIR 1922 Mad. 247, was dissented from by the learned Judges in Kuppuswami Chettiar v. Rajagopala Ayyar AIR 1922

Mad 79. In Krishna Pattar v. Seetharama Pattar AIR 1928 Mad. 1178 however the learned Judges seem to be inclined to hesitate to accept the

view indicated in Kuppuswami Chettiar v. Rajagopala Ayyar AIR 1922 Mad 79 and remarked that if they really had to decide the question they

should hesitate to accept that decision without further consideration of the matter in the light of the decided cases in our Court which have not been

referred to in the decision in Kuppuswami Chettiar v. Rajagopala Ayyar AIR 1922 Mad 79. The learned Judges were however able to dispose of

the matter before them in Krishna Pattar v. Seetharama Pattar AIR 1928 Mad. 1178. Having regard to the observations at p. 54 (of 50 Mad.)

referred to above, I refer this civil revision petition to a Bench for disposal. At the request of the learned Counsel for the petitioner, and seeing that

12 years from the date of the decree would expire in a few months, this civil revision petition will be posted before a Bench nest week.

JUDGMENT

The petitioner in this case obtained a decree in Small Cause Suit No. 234 of 1932 on the file of the District Munsif''s Court, Calicut. The decree

was subsequently transferred for execution to the Court of the District Munsif, Vayitri. An execution petition, E.P. No. 1480 of 1932 dated 17th

March 1932, was put in and was dismissed on the ground that it was barred by limitation. This revision petition has been preferred against that

order. It came before Anantakrisbna Ayyar, J., and on account of a difference in opinion between the view taken in Sankara Nainar v.

Thangamma AIR 1922 Mad. 247 ""that an application to be a step-in-aid of execution need not be made in a pending execution application"" and a

doubt thrown upon that view in Krishna Pat. tar v. Seetharama Pattar AIR 1928 Mad. 1178, he referred the matter to a Bench.

It is necessary to state some further faots. It is not disputed that up till the date when E.P. 210 of 1927 dated 12th November 1927, was filed in

the Court of the District Munsif, Vayitri, execution proceedings had been kept alive. That petition was dismissed on 5th January 1928, because the

judgment-debtor bad applied to be adjudged an insolvent. The exact date of the insolvency does not appear on the records before us but as it was

registered as I.P. No. 2 of 1927, it must have been some time between 12th November 1927 and the close of that year. On 18th June 1930 the

petitioner put in E.P. No. 173 of 1930 to arrest the judgment-debtor. That petition was ultimately dismissed on 26th August 1930, on the ground

that no leave of the insolvency Court had been obtained u/s 28, Clause 2, Provincial Insolvency Act. Meanwhile on 23rd July 1930, the petitioner

applied to the insolvency Court by I.A. No. 424 of 1930 for permission to execute his decree. Leave was granted on 26th August 1920. This was

also the date on which E.P. No. 173 of 1930 was dismissed. The next execution petition put in was the present one, E.P. 1480 of 1932 on 17th

March 1932. That part of the petition which shows the previous steps taken is somewhat involved and obscure and on one point it is clearly

incorrect. The material portion so far as it concerns the matter before us is as follows;

Afterwards execution of the decree was applied for in E.P. No. 210 of 1927 and the decree was sent to the District Munsiff''s Court of Vayitri at

Calicut. Under the orders of the said Court on E.P. No. 173 of 1930, the defendant was arrested and produced before the Court. The surity

produced the security bond and caused the defendants to put in I.P. No. 2 of 1927. As discharge was not applied for afterwards the insolvency

petition was dismissed.

Now it is quite dear that it was not on the petition E.P. No. 173 of 1930, that the defendant put in his I.P. as this is correctly enough described

even in the application as being I.P. No. 2 of 1927. In the counter the plea of limitation was taken and it is clear both from the petition itself and

from the counter, as well as from the way in which the matter was argued before the learned District Munsif that it was E.P. No. 173 of 1930

which was relied to save limitation. The learned District Munsif had dismissed that execution petition as noted above on 26th August 1930

following a Bench decision of this Court to which one of us was a party., Ghouse Khan v. Subba Rowther AIR 1927 Mad. 925, viz., that the

petition was not in accordance with law as leave of the insolvency Court has not been obtained. He held that prior leave must be obtained to

institute a suit during the pendency of the insolvency proceedings and that failure to do so cannot afterwards be cured. On this latter point he

followed Langbu Pande v. Baijnath Saran Pande (1906) 28 All. 387. In the revision petition before Ananthakrisbna Ayyar, J., what was relied on

was I.A. No. 424 of 1930, which petition does not at all appear to have been relied on before the lower Court, and was not even mentioned in the

discussion of the previous proceedings in para. 6 of the present execution petition. It was on account of the difference in view between Sancara

Nainar v. Thangamma AIR 1922 Mad. 247 and Krishna Pattar v. Seetharama Pattar AIR 1928 Mad. 1178 as it affected I.A. No. 424 of 1930,

that Anantakrishna Ayyar, J., referred the matter to a Bench. Before us a third ground has been taken to save limitation, namely, that the petition

E.P. No. 210 of 1927 was suspended in its operation from 5th January 1928 till 26th August 1930 when leave was obtained by the operation of

Section 28, Provincial Insolvency Act. Whether that ground was at all urged before Ananthakrishna Ayyar, J., we do not know. It is not

mentioned in his order of reference but it is of course possible that, having decided to refer the matter to a Bench in so far as it affected the plea of

the saving of limitation of I.A. 424 of 30, he has not thought it necessary to discuss a plea based on E.P. No. 210.

There are therefore three questions before us : (1) whether the view taken by the learned District Munsif that E.P. No. 173 of 30 could not be

relied on because being in its inception illegal that defect could not subsequently be cured by the leave granted by the Court is correct; (2) whether

I.A. No. 424 of 30 will save limitation; and (3) whether the effect of Section 78(2), Provincial Insolvency Act, will enable the petitioner to rely

upon E.P. No. 210 of 1927 to exclude the period from 5th January 1928 to 26th August 1930.

On the first point there is no decision of this Court either before or after dissenting from the Bench decision in Ghouse Khan v. Subba Rowther

AIR 1927 Mad. 925, which decision followed In re Dwarkadas Tejbhandas AIR 1915 Bom. 134. The only decision of any Court quoted to the

contrary is another Bombay decision reported in Bhimaji Bhibhutmal Vs. Chunilal Javerchand, . This is a decision by a single Judge which mentions

Ghouse Khan v. Subba Rowther AIR 1927 Mad. 925 but does not discuss it. Assuming that the actual point in question was here decided, and

this is not quite dear, we cannot certainly interfere in revision with the correctness of a decision based upon a Bench decision of this Court.

Next comes the question of I.A. No. 424 of 30 which is the matter referred to us, but for reasons to be given we think it unnecessary to canvass

the question whether such an application must be made in a pending execution petition. We may say however that the balance of decisions in this

Court certainly appears to confirm the correctness of the view taken in Sankara Nainar v. Thangamma AIR 1922 Mad. 247. This was not only

that of Ramesam, J., in that case (though for some reason in subsequent oases it is only his dictum that was referred to) but also that of Spencer, J.,

in the same case. Kunhi v. Seshagiri (1882) 5 Mad. 141, Annamalai Mudaliar v. Ramier (1908) 31 Mad. 234 and Kannan v. Avvulu Haji AIR

1927 Mad. 288, upheld the view that there need nob be any execution petition pending, and in Krishna Pattar v. Seetharama Pattar AIR 1928

Mad. 1178 the matter was not quite essential for the determination of this case. The reason why we consider it unnecessary to canvass the

question actually referred to us further is that looking at the explanation at the end of Col. 3, Article 182, Lim. Act, which states ""proper Court

means the Court whose duty it is to execute the decree or order, we are clear that I.A. 424 of 30, which was made to the insolvency Court, was

not an application made to the proper Court and hence this application cannot be invoked at all under Article 182, Lim. Act, to save limitation. As

against this view the learned Advocate for the petitioner (the counter petitioner is unfortunately not represented before us) argues that u/s 5,

Provincial Insolvency Act, the Insolvency Court is not a distinct Court but that insolvency is merely a branch of the jurisdiction which it exercises in

its ordinary capacity as some other sort of Court. Reliance is placed by him on the expression in Section 5, Provincial Insolvency Act:

The Court in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in the

exercise of original civil jurisdiction.

It is further pointed out by him that while Section 33, Provincial Small Cause Courts Act, specifically lays down that

a Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of its jurisdiction in suits of a civil nature which are not

cognizable by a Court of Small Causes, shall for the purposes of this Act and the Code of Civil Procedure, be deemed to be ?different Courts;

there is no such provision in the Provincial Insolvency Act. Two oases in ?support of this view are quoted. Laxmiram Lallubhai Joshi Vs.

Bhalashankar Veniram Mehta, is a Bench decision which held that

an application by a mortgagee judgment-debtor in execution of his decree, opposing the insolvency proceedings of the mortgagor-judgment-

debtor, is a step in aid of execution under Article 179, Schedule 2, Lim. Act (15 of 1877) and Article 182, Schedule 1, Lim. Act (9 of 1908).

But the explanation to Section 182 which defines what is the ""proper Court"" is not at all alluded to in the judgment and this omission is pointed

out by Rustomji in his Commentary on the Act. The other decision is the one reported in Baldeo Singh Vs. Ram Saroop and Others, . Here also

the explanation of the proper Court given in Section 182 is not at all referred to. Moreover in that case this was only one of the two grounds on

which the bar of limitation was held to be avoided, and the other ground appears to have been unassailable namely that the executing Court itself

stopped the transmission of the decree to the Collector till judgment in the suit instituted to set aside the order on the claim petition had been

received. Consequently this stay, which the petitioner could not avoid, was held to save limitation. The Bombay High Court has itself held in

Govinddas Rajaramdas Devi Vs. Ganpatdas Narrottamdas, , following Nand Kishore v. Sipahi Singh (1904) 26 All. 608, that even an appeal

against an order in execution is no application to the proper Court u/s 182 because the appellate Court is not the executing Court. That is a very

much stronger case than where the application is to an insolvency Court. In Raghu Nandan Prasad v. Rhugoo Lall (1890) 17 Cal. 268 it was held

that a suit against a claim petition was not an application under Article 182 and consequently would not save limitation. It seems to us to be clear

that the insolvency Court which is entirely a creature of the Provincial Insolvency Act is a different Court from the Court which is to execute a

decree obtained independently of the Insolvency Act, and that the mere fact that the Judge is the same person will not make the two Courts the

same. The learned advocate for the petitioner conceded before us that had the decree in this case been transmitted to some other Court for

execution, then the insolvency Court before which I.A. 424 of 30 was filed would not have been the same Court whose duty it was to execute the

decree, and it can hardly be that the mere accident that the decree was or was not transferred could affect the question whether the insolvency

Court before which the I.A. must in any case have been made was the ""proper Court"" within the meaning of Article 182. We must therefore hold

that I.A. 424 of 30 was not made to the proper Court within the meaning of the explanation to Article 182, Lim. Act, and is not therefore available

to save limitation.

The third point which has been argued before us resting on E.P. 210 of 27 by invoking Section 78(2), Provincial Insolvency Act, has now got

to be considered. Section 9, Lim. Act, states that ""when once time has begun to run no subsequent disability or inability to sue stops,"" the sole

exception being in the matter of Letters of Administration where the running of the time prescribed for a suit to recover the debt shall be suspended

while the administration coutinues. The effect of the grant of permission u/s 78(2), of the Insolvency Act with regard to limitation was considered in

Ramaswami Pillai v. Govindaswami Naicker AIR 1919 Mad. 656. The learned Judges there held:

As we read Section 16(2), (corresponding to Section 28(2) of the new Act) of the Provincial Insolvency Act, what the order of the adjudication

effects is not an absolute stay, but a direction that before a suit is brought, a condition precedent should be complied with, namely, the obtaining of

leave to sue from the Court. In our opinion Section 15 Lim. Act, does not operate to save limitation in cases where the suit could have been

instituted on complying with a preliminary requisite in that behalf.

This decision was passed prior to the Provincial Insolvency Act 5 of 1920 and Section 78(2) is new so that the effect of that section did not

arise for consideration. In that case the adjudication had been annulled and probably under those circumstances the decision might have been

different had the matter been decided under the new Act. Nevertheless the reasonings are still worthy of consideration. As regards the oases

decided after the new Act in Sughra Bibi Vs. Gaya Prasad and Another, , it was held that though Section 78(2) did not apply to that case as the

debt was not proved nevertheless some force must be given to the proviso to Section 31. That was a case where an application for arrest was

made shortly after the cessation of the protection order which had been passed, and it was held that if the application was made promptly after the

cessation of the protection order the applicant would be entitled to the exclusion of the period during which the protection order was in force. In

another case Mulchand Vs. Rajdhar, permission had been granted u/s 28(2) but it was found to have been impossible to act. It was held

that such permission was ineffectual to exclude the unfettered operation of Section 78 and that the period between the adjudication and annulment

should be deducted from the period allowed for limitation.

In Ramaswami Chetty v. Palaniappa Chetty AIR 1933. Mad. 675 the application was one to execute a decree in favour of the insolvent and it

was held that Section 78(2) had no application to such cases. There are remarks in that case which go to show that Section 78(2) imposes a

limitation on Section 9, Lim. Act. Now it is by no means clear in the present case that there has been any annulment of the adjudication order and if

there had been a clear annulment it is very remarkable that the provision in Section 78(2) should not have been relied on at all in the lower Court,

nor so far as we can see even before our learned-brother Ananthakrishna Ayyar, J, It was the duty of the petitioner to state clearly in his petition

the ground on which he relied to save the bar of limitation. It is obvious, on a mere comparison of the dates we have quoted, what was the bar of

limitation which he had to meet and it is quite clear that he relied on E.P. No. 173 of 30 and on nothing else for that purpose. The learned District

Munsif remarks in his order on I.A. 424:

The respondent was adjudged insolvent in 1928 and was given six months time to apply for discharge. He has not applied for discharge. He now

says that he intends to apply for art extension of time for applying for discharge. He has admittedly not applied for any extension till now. I do not

see sufficient ground therefore for not allowing the petition. Leave prayed for is therefore granted.

So it is clear that the failure to apply for discharge was brought to the Court''s notice, and yet it passed no orders annulling the adjudication or

dismissing : the insolvency petition. It apparently should have done so and the position would have been much simpler bad it annulled the

adjudication, but it merely gave leave to the petitioner to execute his decree. Even in arguing the case before us no reference was made to the

allegation in the E.P. that the insolvency petition had been dismissed nor was it even asserted in this petition that the adjudication had been

annulled. On our noticing the allegation in the E.P. that the insolvency petition had been dismissed we asked the learned advocate for the petitioner

whether this was so and he was not able to inform us definitely on the point.

In these circumstances, and especially when Section 78(2) was not relied upon before the lower Court as a ground for saving limitation we are

not prepared in revision to interfere especially by what will be an ex parte order, based on a somewhat difficult question of law when the most

important fact Which would justify such interference, viz., that the adjudication had been actually annulled is not established. It is quite a debatable

point whether Section 78(2) will or will cot apply when the adjudication has not been annulled bat leave is merely granted to a particular person to

proceed with his remedy in the ordinary Court. Had the matter been raised and discussed before the learned District Munsif, and had he given a

decision either for or against the petitioner based on Section 78(2), Provincial Insolvency Act, the position would have been very different, but we

feel that at this stage it would be unsafe and unwise for us to interfere in revision when we are not in possession of the actual facts on which this

plea in bar of limitation is sought to be raised. In the result therefore we are not prepared on any of the three grounds alleged before us to interfere

in revision with the findings of the lower Court. The revision petition is there, fore dismissed but with no costs as there is no appearance of the

counter petitioner.