UMA SHANKER SRIVASTAVA Vs. S N MISRA

JUDGEMENT

(1.) BOTH the appeals arise out of the same execution pro ceedings. Appeal No. 1556 of 1964 has been filed by the judgment-debtor and the other connected Appeal has been filed by the decree-holder.

(2.) SUIT No. 520 of 1959 was filed by the decree-holder against the judg ment-debtor for recovery of arrears of rent for the period January 1955, to December, 1957. This suit was decreed on 21-12-1960. When the decree was put into execution the judgment-debtor raised several objections. The princi pal objection was that no part of the decree was executable because the arrears of rent in respect of which the suit was filed and decree obtained were debts provable under Section 34 of the Provincial Insolvency Act. The judg ment-debtor pleaded that he had made an application on 19-3-1957 for being adjudged an insolvent. The Insolvency court by an order dated 18th October, 1957 adjudged the judgment-debtor to be an insolvent. He was subsequently discharged by an order dated 4-5-1962. On these facts the judgment-debtor claimed that no part of the decree was executable because the entire amount was provable as debt under Section 34 above.

(3.) I will take up the decree-holder's appeal first. The learned coun sel for the appellant contended that the view taken by the courts be low that the decree-holder was entitl ed to execute the decree only in so far as it was in respect of arrears of rent which had fallen due after 18-10-1957 Is erroneous in law. It was urged that under Section 28 (7) of the Insolvency Act the date of adjudication of the Judgment- debtor as insolvent related back to and took effect from the date of the application i, e. 19-3-1957. It was submitted that this being so the decree holder legally was entitled to prove only such claims before the In solvency Court in respect of arrears of rent as had accrued due prior to 19-3-1957, but in respect of arrears of rent which accrued due after that date the decree-holder was not entitled to prove the same in the Insolvency Court. Therefore the decree was executable in respect of arrears of rent which had accrued due after 19-3-57 and not after 18-10-57 as held by the courts below. In support of this contention the learned counsel placed reliance on a Full Bench decision of the Lahore High Court in Kewal Krishna Kalia v. Special Official Receiver for Punjab and Delhi Provin ces for Estate of Sohan Lal Insolvent, AIR 1939 Lah 384 (FB). He also relied on a decision of this Court in Sisram v. Ram Chander Mai, AIR 1930 All 104, I have heard the learned counsel for the parties and perused the judgment in the Full Bench case noted above. It Is true that different views were taken In several other High Courts. The Lahore High Court, after having taken Into consideration the different views of different High Courts, ultimately by an unanimous judgment held that Sec tion 34 is governed by Section 28 (7) of the Provincial Insolvency Act. I respectfully agree with the view of the Lahore High Court.