SUDHANDIRAN Vs. S KRISHNAN

JUDGEMENT

(1.) Heard both sides. The only question to be decided in this revision petition is as to whether an execution petition can be proceeded when an application under Insolvency Act is filed against the judgment-debtor.

(2.) The learned counsel appearing for the revision petitioner relied on the decision rendered in (Mahendrakumar Baishya Shaha v. Deeneshchandra Ray Chaudhuri) AIR 1933 Calcutta 561 to say that filing of petition before the Insolvency Court is sufficient to stay the proceedings pending before the executing Court.

(3.) The learned counsel appearing for the respondent relied on the decision reported in (Pothuganti Venkateshwarulu v. Yangala Mallaiah) AIR 2001 AP 358 to say that mere filing of an application before the Insolvency Court is not sufficient to stay the proceedings of the execution Court. It is relevant to extract paragraphs 3 and 4 of the said decision, which runs as follows :- "3. On the other hand, the learned counsel appearing for the respondent/decree holder submitted that no doubt I.P. No. 11 of 2000 was filed but there was no order passed by the Court before which the Insolvency proceedings are pending exercising power under S. 52 of the Provincial Insolvency Act, 1920. Therefore, the properties are still covered by the order of attachment passed by the Court below, He further submitted that merely because I.P. No. 11 of 2000 was filed the right of the creditor would not wither away. In support of his contention he placed reliance on the judgment rendered in Kuppu Boyan v. Sengottaiyan, AIR 1983 Madras 314, wherein it was held as follows (para 6) :