Velagaleti Veerayya vs Kandeppu Narasimha Rao by mother and next friend Venkatasubbamma and Another

Horace Owen Compton Beasley, Kt., C.J.—Section 78(2) of the Provincial Insolvency Act only applies to debts ""proved"" under the Act

and not to debts ""provable"".

The facts of the case here as I understand them are that the defendant filed an insolvency petition on 5th March, 1930, and was adjudicated on

5th September, 1930. Subsequently the adjudication was annulled on 31st August, 1932. The date of the promissory note is 4th November,

1928. Therefore, unless Section 78(2) can be relied upon by the creditor, the claim, in the suit was barred by limitation. The facts appear to be that

all that was done with regard to the suit debt was that it was included by the insolvent in his schedule and nothing more. The learned Subordinate

Judge holds that the debt was thereby ''proved'' relying on the Calcutta decision and overlooking the decision in Lakshmi Bai v. Rukmaji Rao

(1934) 67 M.L.J. 45: ILR 57 Mad. 767. He also adds in further support of his view that he cannot imagine any better proof of the debt than its

admission, by the insolvent by his including it in his schedule of debts. That no doubt is some evidence of the existence of the debt but nevertheless

the question still remains as to whether or not the debt has been ''proved'' under the Act. In my view the debt is not proved under the Act by its

mere inclusion in the schedule of the insolvent. The matter has been fully dealt with in my own judgment in Lakshmi Bai v. Rukmaji Rao (1934) 67

M.L.J. 45: ILR 57 Mad. 767 and it is quite clear from it that such a debt as this is at the most a debt ""provable"" in the insolvency and not a debt

''proved''. The lower Court was, therefore, wrong in its conclusion and the decree of the lower Court is therefore reversed and the suit dismissed

as being barred by limitation. The Civil Revision Petition is allowed with costs here and in the lower Court.