FATMA BI Vs. NAGOORKHAN

JUDGEMENT

(1.) This is an appeal from a judgment of Waller, J., sitting in insolvency. The Official Assignee allowed the claim of the appellant here which was in respect of a debt alleged to be due to her on a promissory note by the insolvent. A creditor preferred an appeal from the order of the Official Assignee to Waller, J., and he allowed the appeal.

(2.) The facts can be briefly stated: The insolvent owed the appellant money on a promissory note. The last payment was a payment of interest on 20 October 1925. No further payment was made by the insolvent and the debt would have become and did become barred by limitation on 20 October 1928. Up to that time the appellant had taken no steps to enforce her claim against the insolvent on the promissory note. The 20 October which was a Saturday, was a public holiday and the High Court was closed. The next day, the 21st, was a Sunday and the Court was closed that day also. On 22 October, the appellant could have filed a suit against the insolvent upon the promissory note and enforced her claim because by reason of the provisions of Section 4, Limitation Act, the insolvent could not successfully set up as bar to the suit the Limitation Act. Section 4, Limitation Act, is as follows: Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.

(3.) However on the morning of 22 October, 1928 the insolvent was adjudicated an insolvent and it is admitted that no steps were taken thereafter with regard to this claim by the appellant until she preferred her claim in the insolvency. Waller, J., held that, as the claim on the promissory note was barred on 20 October, and as the appellant had not filed a suit on 22nd October, the first available day after that, her claim was one which could not be proved in the insolvency and accordingly allowed the appeal.