RANGAPPA Vs. REDDI GOVINDA REDDY

JUDGEMENT

(1.) This is a second appeal in execution preferred by the second judgment-debtor against the judgment and order dated 30-3-1959 of the Additional Subordinate Judge, Kurnool, who in his appellate jurisdiction affirmed the order of the District Munsif, Adoni, holding the E. P. 252/56 in O. S. No. 59/51 in time.

(2.) The facts are not much in dispute. O. S. 59/51 on the file of the District Munsif, Dhone resulted in a decree on 26-4-1952 against the appellant and the 3rd respondent and in favour of the 1st and 2nd respondents hereinafter to be referred to as decree-holders. Before any steps for execution were taken by the decree-holders, the appellant filed I. P. 26/53 in the Subordinate Judges Court, Bellary. During the pendency of the insolvency proceeding, the decree-holder filed E. A. 18/53 on 27-1-1953 before the District Munsif, Dhone for transmission of the decree to the Court of the District Munsif, Adoni. The application was ordered and they filed E. P. 111of 1953 in the later but it was dismissed on 27-7-1953. The appellant was adjudged an insolvent on 13-10-1952 but the insolvency was annulled on 15-12-1954. Thereafter the decree-holders filed E. P. 252/56 on 23-4-1956. Despite receiving notice under Order 21, Rule 23 the first judgment-debtor preferred to remain ex parte. The appellant, however, resisted the application on the plea of limitation. That plea was elaborated by contending that E. A. 18/53 and E. P. 111/53 were filed during the pendency of the insolvency proceeding and no leave of the insolvency Court was obtained therefor as required by Section 28 (2) of the Insolvency Act; that the same cannot be regarded as an application in accordance with law or as step-in-aid of execution and therefore, E. P. 252/52 cannot be held to be within time. Further it was contended that the decree-holder was not entitled to the benefit of Section 78 (2) of the Insolvency Act since they had failed to tender evidence that he had proved his debt as required by the said Sub-section.

(3.) The District Munsiff held that Section 78 (2) of the Provincial Insolvency Act entitled the decree-holders to exclude the period from the date of the order of adjudication to the date of annulment. If the period is computed in the light of the said sub-section, E. P. 252/52 would be within time. With this view the Additional District Judge concurred. In the alternative he gave effect to the argument that since the E. P. was also against the first judgment-debtor, who was a solvent and not subject to any disability under the Provincial Act, Explanation I to Article 182 will also save time against the appellant.