RAMAGOPAL NAICKER Vs. MUTHUKRISHNA AYYAR

JUDGEMENT

(1.) THIS appeal raises an interesting question of limitation. The suit was on a simple mortgage executed by defendant 1 in favour of the plaintiff Ex. , A-3 dated 25-41927, for a sum of Rs. 500. The amount was payable in instalments and the final instalment was payable on 25-4-1930. The suit was Instituted on 30-9-1948. Defendant 2 is the purchaser of the suit property from the Official Receiver. Since defendant 1 was adjudged insolvent in I. P. No. 9 of 1935 on the file of the District munsif's Court,. Koilpatti, the property became vested in the Official Receiver, tirunelveli. Reliance was placed on Ex. A-5 dated 23-12-1940, a certified c6py of the sale deed in I. P. No. 5 of 1936, executed by the Official Receiver, in favour of defendant 2, wherein it appears that the Official Receiver has stated that the sale was subject to the mortgage under Ex. A-3. If this amounts to an acknowledgment of lia-bility under Section 19, Limitation act, the suit would be within time. In Currimbhal v. Ahmed Alli, ILR 58 Bom 505 : (AIR 1933 Bom 91) (A) Sir John Beaumont c. J. and Blackwell J. took the. view that the Official Assignee was not the duly authorised agent of the insolvent to give acknowledgment of a liability in respect of a debt due by the insolvent. Relying on this decision the learned District Munsif dismissed the suit which dismissal was confirmed in appeal.

(2.) MR. Venkatadri for the appellant brings to my notice a Bench decision of our high Court in Paramasivan Pillai v. Aristatle Chakona. AIR 1918 Mad 1122 (2) (B), where in an application to sell the insolvent's property, the Official Receiver had furnished particulars regarding the encumbrances existing on the property. It was held by Oldfield and Phillips JJ. that the admission of the debt in that application was sufficient acknowledgment of the liability within the meaning of Section 19, limitation Act. The judgment of Sir John Beaumont C. J. and Blackwell J. in ILR 58 Bom 505 : (AIR 1933 Bom 91) (A) does not refer to this Madras case. In view of the language of Section 19, Limitation Act, it is for consideration whether the Official Receiver could be considered to be the duly authorised agent of the insolvent and whether he could be held to be a person against whom such property or right is claimed or some person through whom he derives title or liability within the meaning of the section notwithstanding that the insolvent's property might vest in the Official receiver under Section 28 (2), Provincial Insolvency Act. It will, therefore, be better to have this appeal disposed of by a Bench or a Full bench as the Honourable the Chief Justice may decide. The papers may be placed before the Honourable the Chief Justice for orders as to posting the appeal before a Bench. JUDGMENT OF THE DIVISION BENCH govinda Menon, J.

(3.) THE order of reference to the Bench by Krishnaswami Nayudu J. is sufficiently detailed as regards the facts of the case and no useful purpose will be served by our re-stating them once again. As stated by the learned Judge the question is whether an acknowledgment by an Official Receiver would be sufficient to prolong the period during which claim subsists. That, there is an acknowledgment in writing of an existing debt cannot be disputed in view of Ex. A-5 if it is admissible in which the Official Receiver has explicitly stated that the sale would be subject to the mortgage under Ex. A-3.