IN RE : SHREE STEEL CENTRE Vs. STATE

JUDGEMENT

(1.) In all the notices of motion common question of law is involved, therefore they were heard together with the consent of the Advocates and I am passing a common order, copy of which should be separately kept in each matter.

(2.) Main bone of the contention of the judgment debtors is that Union Bank of India filed a suit against them in respect of a Bill of Exchange accepted by the judgment, debtors some time on 25-11-1992 and 27-11-1992. The Bank obtained an exparte decree against the judgment debtors on 5-2-1996. The judgment debtors engaged advocates to defend them in the said suit. However, their advocates did not inform them about the progress of the suit and ultimately an exparte decree came to be passed against them.

(3.) Thereafter the judgment creditors got issued insolvency notice and served it on 15-3-2000. Thereafter judgment debtors have taken out this Notice of Motion for setting aside the insolvency notice. The objection to the insolvency notice i.e. raised by the judgment debtors is that even though the bank obtained decree on 5-2-1996 they did not start execution proceedings within two years or at any time till the insolvency notice was served or even till today and therefore since the period of two years has elapsed from the passing of the decree, under Order XXI, Rule 22 of C.P.C. it was necessary for the bank- judgment creditors to apply to the Court for leave to execute the decree and since that has not been done the insolvency notice cannot be proceeded with and is required to be set aside. Counsel for the judgment debtors drew my attention to Insolvency Laws Amendment Act 1978 (Act of 28 of 1978) wherein section 5 of the said Act and in particular 5(c). Section 5 reads as under: