S.S.A.S. Muttayya Chettiar vs Periatambi Tevan and Another

Curgenven, J.—I think that the learned Subordinate Judge was right in holding that the execution petition was barred by limitation. It can

only be saved by excluding the period during which the insolvency petition was pending against the decree holder and it is conceded that that can

only be done if Section 78, Provincial Insolvency Act will in terms apply to the circumstances. It has recently been held by Anantakrishna Ayyar,

J., in M.R.M. Rama Pillai Vs. Kasamuthu Nadar and Others, that that section has no application to a case in which the decree-holder and not the

judgment-debtor is the insolvent and my agreement with that decision will be sufficient to dispose of this case. There is however the further

circumstance that Section 78 excludes the period between the date of adjudication and the date of the order of annulment, and in the present case

it has to be admitted that no order of adjudication was passed against the decree-holder at all, so that it follows that no order annulling that

adjudication can have been passed either. All that happened was that a petition was filed by a creditor and the Official Receiver was appointed as

interim receiver, but before the stage of adjudication was reached the insolvency petition was withdrawn. In these circumstances it is not possible

to hold that what took place had any effect in extending the time within which the execution petition had to befiled. The civil revision petition is

accordingly dismissed with costs.