(1.) IN this application, the petitioning creditor seeks to amend the main insolvency petition filed on 7 -10 -1972, by stating that he had come to know that one G. Shyamala, wife of G. Chandriah, residing at Sannadhi Street, Kaladipet, Madras, had obtained a decree against the debtor in O.S. No. 4286 of 1964, on the file of the City Civil Court, Madras, and filed E.P. No. 2832 of 1972 in the City Civil Court, Madras, and obtained orders of attachment on 29 -12 -1972, on the property of the insolvent -debtor viz, 61 Mathu Mudali St. Royapettah, and effected attachment on 30 -12 -1972. The original cause of action on which the petition for insolvency is based, is that the debtor had departed from his dwelling house from his usual business place at Muthu Mudali St. Royapettah and is otherwise absenting himself with the intention to defeat and delay his creditors.
(2.) LEARNED counsel for the petitioning creditor submits before me that the petition for amendment was filed on 12 -2 -1973 and the actual attachment was effected on 30 -12 - 1972, and therefore it was possible for him to file a fresh insolvency petition on that date and if that be so no prejudice would be caused to the respondent (the debtor) by amending the petition, including the ground relating to attachment. In support of that, he cites the decision in Chockalingam v. Muthiah, AIR 1938 Mad 884. In that case what had happened was on 24 -11 -1930, a petition for insolvency was filed by the creditor alleging that certain amount to be due by the insolvent was pending enquiry before an arbitrator. On 28 -11 -1930 by an award that amount due became ascertained. In those circumstances, the amendment was sought to include the fact relating to the award and the amendment was allowed holding "all that was necessary was to allow the petitioning creditor to amend his petition by adding that the inchoate right which he had previous to the petition became perfected in virtue of the award delivered four days later." I am unable to see how the decision would help the applicant. That was a case, as seen above, where notwithstanding the pendency of the arbitration proceedings, the petitioning -creditor alleged that the debt was due which undoubtedly was an inchoate right, which became ascertained on the award being passed. But the position is entitrely different here. Learned counsel cited another decision in Palaniappa v. Chidambaram, AIR 1938 Mad 53 at p. 55, wherein it is stated.