(1.) THE J. D. against whom a decree for a sum of money had been passed in I. P. No. 8 of 1927 is the applt. in this appeal. One Chekka Rangayya was adjudicated an insolvent on 17 -11 -1927 & his properties vested in the Official. Receiver of West Godavari. This Chekka Rangayya had to realise a certain sum of money from the present applt. & therefore the Official Receiver filed an appln. Under Section 4, Provincial Insolvency Act, & the Ct. passed an order directing the applt. to pay a sum of money as due to Chekka Rangayya to the Official Receiver of West Godavari on 9 -4 -1941. According to the provisions of the Act, this order is tantamount to a decree which is capable of execution. The decree was for a sum of Rs. 8120 -5 -11. Against the order directing the payment of this sum, an appeal was preferred to this Ct. in C. M. A. No. 545 of 1941 which was, dismissed on 4 -2 -1943. In the meanwhile, the insolvent had died on 13 -11 -1941 & his legal representative had been brought on record on 22 -9 -1942. But this is a matter of minor importance because nothing depends on the question as to whether the legal representative was brought on record in time or not. As the Official Receiver had obtained the decree on 9 -4 -1941 which was confirmed on appeal on 4 -2 -1943 he applied for executing the same against the applt. on 14 -7 -1943 by E. P. No. 59 of 1943. This petn. underwent various adjournments & finally it was dismissed with costs on 28 -2 -1944.
(2.) THEREAFTER an appln. for annulling the adjudication had been taken before the insolvency Ct. with the result that on 18 -11 -1944 the adjudication of Chekka Rangayya had been annulled. The result of this order according to Section 37, Provincial In - solvency Act is that the insolvent was relegated to the position which he occupied prior to the date on which the appln. for adjudication had been made. This order annulling the adjudication was again taken up to this Ct. & in C. M. A. No. 641 of 1945 this Ct. set aside the order annulling the adjudication & restored the adjudication to its original state on 3 -9 -1947. The present appln. E. P. No. 8 of 1948 out of which this appeal arises was filed on 7 -2 -1948. The learned Dist. J. held that the appln. was not barred because according to him the period of three years which has to be computed from 28 -2 -1944 expired during the period when the order annulling the adjudication was in force & therefore the Official Receiver had three years from 3 -9 -1947 to file the appln. for execution.
(3.) THE learned counsel for the resp. invited our attention to passage at p. 282 of 'Chhattar Singh v. Kamal Singh', (49 All 276, at p. 282), as well as to a judgment of our learned brother Raghava Rao J. in 'V. Venkataratnam v. V. Anjaneyalu' (C M A Nos. 454 & 455 of 1947). The facts of these two cases cannot be said to be in any way approaching the points in controversy in this case. Our learned brother had to construe the meaning of the word "closed" in an appln. & he was of opinion that in the particular context of the circumstances of that case the word "closed" should be understood as that for the time being the matter had proceeded out of the ordinary role of pending proceedings. The appln. to restore should be deemed to be a revivor. We fail to see quondam how this case has any application to the facts of the present case. If our view that during the time when the insolvency stood annulled & before that order was set aside it was possible for the quondam insolvent to have applied for execution of the decree is right, then there is no impediment or any obstacle to execute the decree. The decree was in full force. It can be executed by whomsoever is competent to execute the same. To take an illustration, supposing the Official Receiver, after getting the decree, had assigned it over to a third party who did not put in any appln. for execution within three years of getting the decree & there after re -assigned it in favour of the Official Receiver, can be said that the Official Receiver can ignore the time during which the decree had been in the ownership of the third party, having been assigned in his favour, when seeking to execute the decree? The answer is an emphatic "no". We are therefore of opinion that since the decree could have been executed between 28 -2 -1944 & 9 -3 -1947 & since no steps were taken towards that end, the Official Receiver's appln. E. P. No. 8 of 1948 dated 7 -2 -1948 is barred under Article 182 (5), Limitation Act. The appeal is therefore allowed & the E. P. No. 8 of 1948 is dismissed with costs throughout. The costs will come out of the estate.