SOLAYAPPA NAICKER Vs. SHUNMUGASUNDARAM PILLAI

JUDGEMENT

(1.) I am prepared to follow the judgments of this Court reported in Natesa Chettiar V/s. Annamalai Chetiiar (1922) 17 1 W 319 and Rangiah Chettiar v. Annaswami Alwar Aiyangar (1923) 18 1 W 836 which imply that the right of an insolvent adjudicated as such under Act III of 1907 to have execution proceedings against him stayed, unless the Insolvency Court gives leave to prosecute them, is a substantive right. That being so, it has not been abrogated by the subsequent stasute Act V of 1920. The order in E.P. No. 863 of 1923, dated 19 September, 1923, to arrest respondent was not with leave of the Insolvency Court and was therefore without jurisdiction.

(2.) IT is contended that it has become final because no appeal was presented against it. But it was an order passed without notice. On 5 October, 1923, he was arrested, brought to Court and released on terms, and on 16 October, 1923, he put in his E.A. No. 692 of 1923. There was, therefore, no order for arrest in force at the time he put in his E.A. and no question of res judicata therefore arises. Appellant urges that the Lower Appellate Court should not have dismissed his E.P. in toto. I agree and direct that the E.P. be not dismissed but be returned to the appellant with directions that it cannot be entertained by the executing Court unless and until the leave of the Insolvency Court is obtained. The appeal is allowed to this extent only and is otherwise dismissed. The respondent will get his costs.