Gopa Somanna (died) and Others vs Vakina Ramachandra Chowdari and Others

Satyanarayana Rao, J.—The first judgment-debtor is the appellant. He raised the objection to the execution of the decree that the execution

petition was barred by limitation. He was adjudicated an insolvent on 2nd October, 1931, in I.P. No. 7 of 1931, Sub-Court, Ellore, which was

filed on 23rd January, 1931. The suit in which the present decree was passed was instituted on 24th February, 1931 and decreed on 12th

December, 1931. The adjudication was annulled on 15th July, 1940 and the present execution petition was filed on 9th December, 1943. The

judgment-debtor says that the decree is a nullity as no leave of the insolvency Court was obtained to institute the suit, as the adjudication in

October, 1931, relates back to the date of the petition. Secondly he contends that the period between the date of adjudication and the date of the

annulment ought not to be excluded in computing limitation as the decree was obtained after the adjudication.

In my view there is no substance in either of the contentions. As stated already the adjudication was annulled and it is the very judgment-debtor

who allowed the decree to be passed without objection that leave to institute the suit was not obtained who now raises the question of the invalidity

of the decree. The point was considered by Somayya, J., in Ratnavelu Chettiar by mother and guardian Madhuravalli Ammal and Another Vs.

Franciscu Udayar and Others, , in which the facts are similar and he held that when once the adjudication was annulled unconditionally it is as if

there were no adjudication at all at any time and that therefore a decree obtained without leave is valid. In reaching, this conclusion the learned

Judge relied upon the decisions of this Court in Ramasami Kottadiar and Others Vs. Murugesa Madali and Others, and Kothandarama Routh and

Another Vs. Murugesa Mudali and Another, and upon the decision of a single judge of this Court in Lingappa v. Official Receiver, Bellary (1937)

47 L.W. 366. I respectfully agree with the conclusion of Somayya, J. Following the said decision I overrule this objection.

In this case the debt was incurred prior to the date of the presentation of the insolvency petition and was allowed to be proved in the insolvency,

though the decree itself was passed after the adjudication. The mere fact that the decree was passed after the adjudication does not make it a debt

incurred after the adjudication. The liability was the antecedent liability, antecedent to the date of the petition and it is a provable debt and was in

fact proved. In these circumstances there is no reason for not giving to the decree-holder the benefit of Section 78(2) of the Provincial Insolvency

Act. It is common ground that if this period is excluded the execution is in time.

In the result this appeal is dismissed with costs.