THADI MURALI MOHAN REDDI Vs. CHINTA BRAHMAYYA

JUDGEMENT

(1.) This appeal arises out of a suit brought to recover the amount due under two promissory notes dated 12 November, 1930 and 5 December, 1930, executed by one Bulli Gangireddi. the deceased father of the defendant in favour of the plaintiff. At the date of the execution of the suit promissory notes the defendant and his father were members of a joint family and undivided. The father was carrying on a family business and the suit debts were incurred in the course 01 that business. The father was adjudicated insolvent on 13 November, 1931, on a petition filed by his creditors. Before the order of adjudication, the defendant represented by his next friend filed a suit for partition against his father and on 16 November, 1931, a preliminary decree for partition was passed and it has since been brought to our notice that a final decree was passed on 6th. April, 1935. The plaintiff proved his debt before the. Official Receiver but no dividend was paid to him on the date of the suit for even up to the date of the decree in the lower Court. The learned Subordinate Judge gave a decree in favour, of the plaintiff and this appeal has been preferred by the defendant.

(2.) Several defences were raised in the lower Court but Mr. Raghava Rao his learned Counsel has confined himself to two main defences, (1) the suit is barred by limiitation; and (2) the suit is incompetent by reason of (a) the leave of the Insolvent Court was not obtained before the institution of the suit under Section 28 (2) of the Provincial Insolvency Act, and (b) the Official Receiver not having been made a party to the suit, the suit against the defendant alone on a debt contracted by the father is not maintainable.

(3.) In regard to the first contention the lower Court relied upon a deed of composition (Ex. D), dated 22nd March, 1933, filed in the Insolvency Court as an acknowledgment of the debt by the father. The main contention of Mr. Raghava Rao is that the composition deed would not operate as an acknowledgment. He has taken us through the terms of the composition deed but was not able to convince us that the view of the lower Court was wrong. Ex. D is signed by the insolvent and the creditors including the plaintiff. This contention must therefore be overruled.