UNA VIGESU PATRO Vs. VYSYARAJU SOMAYYA RAJU

JUDGEMENT

(1.) This is an appeal by the judgment-debtor in proceedings arising out of the execution of a mortgage decree. The respondent obtained the final mortgage decree on 16-9-1941 and applied for execution in E. P. nO. 225 of 1941. While that execution petition was pending the judgment-debtor applied to the Insolvency Court for being adjudged an insolvent, on 10 12.42, in 1. p. 3 of 1942, and he was actually declared in solvent on 3 7-43, After the insolvency application was filed and before the judgment-debtor was declared insolvent the decree-holder on 9-1-43, got his execution petition dismissed and took no further proceedinga in execution during the pendency of the insolvency petition. On 9-2-46 the insolvent got a discharge and the respondent decree holder once again applied for execution of his mortgage decree in E. P. 43 of 1947 filed on 3.2.47. It will be seen that this application is beyond three years of the dismissal of the prior execution petition which was on 9 1-43. Prima facie, therefore, the present execution petition would be open to the objection that it is barred by limitation and that was the objection that the judgment-debtor took by an application filed under Section 47, Civil P. O. The answer of the decree-holder is that, during the pendency of the insolvency proceedings, there weretwo acknowledgments of the mortgage debt made by the Official Receiver on whom the insolvent's property was vested. He relies on Ex. 2, dated 12-8- 1944 and Ex. 2-A, dated 2 12-1945, as constituting such acknowledgments which would save limitation under Section 19, Limitation Act. Exhibits 2 and 2-A are two sale proclamations under which the equity, of redemption in the property covered by the mortgage decree now under execution was sought to be sold and in the said sale proclamations the amount due under the mortgage decree was specifically mentioned, and the sale of the property is specifically stated to be subject to the mortgage decree. There can, therefore, be no doubt that these two documents would constitute an acknowledgment of the mortgage debt provided that the Official Receiver who was then in charge of the insolvency proceedings can be said to be the proper person to make the acknowledgment. The contention of the judgment-debtor in the Courts below was that the Receiver was not the agent of the judgment-debtor and could not, therefore, be said to be the: person who could properly acknowledge the debt on behalf of the judgment-debtor but this contention was not accepted by them, and the execution was directed to proceed and hence this second appeal.

(2.) Learned counsel for the appellant reiterated the same contention before us. According to his contention the Official Receiver in an insolvency proceeding is not an agent of the judgment- debtor. He has drawn our attention to a number of cases in which there has been some discussion of the question whether the Official Receiver can, in those circumstances, be said to be an agent of the insolvent or not. In particular he has relied on the case in Currimbliai v. Ahmedali.. A. I. R. (20) 1933 Bom. 91 which holds the view that ho is not such an agent. That case itself refers to an earlier case of the Madras High Court, where his Lordship Coutts-Trotter J. (as he then was was inclined to hold the contrary view. It is, however, unnecessary for us to go into that question which will arise in cases where the acknowledgment related to a money claim. But totally different considerations apply where the acknowledgment relates to a mortgage claim pending insolvency proceedings, as in this case. It is undisputed that the rights and remedies of a mortgagee are not in any way affected by the insolvency, but all the same there can be equally no doubt that the equity of redemption in the mortgaged property vesta in the Official Receiver : see Kala-chand Banerjee v. Jagannath, A. I, R. (14) 1927 P. C. 108 and that during the insolvency, it is only the Receiver who entirely represents the property mortgaged. That is really what amounts to vesting' of the right, title and interest of the judgment-debtor in the property and the position is authoritatively laid down by the Lordships of the Privy Oouncil also in Raghunath Das v. Sundar Das, 41 ind. App. 251 at p. 257. Therefore, so far as such claims are concerned, the question is not whether the Official Eeceiver is the agent of the judgment-debtor, but whether he is not himself the very person in whom the property of the original judgment-debtor vests and who, in that capacity is not entitled to make acknowledgments for the purpose of saving limitation. This depends upon whether a person in the position of an Official Receiver in an insolvency proceeding can reasonably be said to come within the wording of Sub-section (i) of Section 19, Limitation Act. That section is in the following terms:

(3.) I agree.