B GURUSWAMY Vs. K KOTAYYA

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal arises under the following circumstances. The respondent instituted on 24-10-52 a suit, O.S. No. 328 of 195 2, in the Court of the District Munsif of Manigiri against the appellant on foot of a promissory note executed by him. The defendant-appellant remained ex parte, and an ex parte decree was passed against him on 15-12-1952. Subsequently, the decree-holder-respondent took out execution against him in E.P. No. 35 of 1960. At that stage, the appellant-judgment-debtor pleaded that when O.S. No. 328 of 1952 was instituted against him, he was an undischarged insolvent and that therefore the suit which was laid against him without the leave of the insolvency Court was incompetent and that consequently the decree, which was passed in the suit was void. The District Munsif Kanigiri overruled this contention and directed execution to proceed. The judgment-debtor preferred an appeal to the Subordinate Judge, Kavali, but failed in that appeal. He has therefore come up to this Court by way of the present Civil Miscellaneous Second Appeal.

(2.) The contention of the appellant-judgment-debtor is rested solely on the ground that when O.S. No. 328 of 1952 was instituted and when a decree in it was passed against him, he was an undischarged insolvent. This fact is not denied by the learned counsel for the respondent-decree-holder. But he urges that a decree passed in a suit laid against an undischarged insolvent without the leave of the insolvency court is not a nullity in law. It is argued that a Court has jurisdiction to pass a decree against an undischarged insolvent although the leave of the insolvency Court had not been obtained for instituting the suit. If the plea that he was an undischarged insolvent had been raised by the defendant in the trial Court, the suit might perhaps have been dismissed. If it overruled the plea and passed a decree, the appropriate remedy of the defendant-judgment-debtor would have been to appeal against the decree. But he cannot question the validity and enforceability of the decree in collateral proceedings. He allowed the decree to become final against him and he cannot seek to go behind the decree. The exception is surely a case where the decree itself is a nullity, but in a case like the present, the decree cannot be regarded as a nullity. This proposition is supported by the decision of a Division Bench of this Court in Sriramamurthi v. Official Receiver (1957) 1 Andh WR 216 at p. 225: (AIR 1957 Andh Pra 692 at p. 700). Besides the insolvency of the appellant-judgment-debtor was annulled on 11-8-1958, that is, much before E.P. No. 35 of 1960 was launched. The infirmity caused by the insolvency of the judgment-debtor must be taken to have been cured and removed by the subsequent annulment of his insolvency. This is an added reason for saying that the judgment-debtor is not entitled to question the enforceability of the decree passed against him, in execution proceedings.

(3.) For the above reasons, this Civil Miscellaneous Second Appeal fails and is dismissed with costs.