JAGADISAN PILLAI Vs. NARAYANAN CHETTIAR

JUDGEMENT

(1.) These appeals raise a question of limitation. The appellant in C.M.A. No. 463 of 1933 is the holder by assignment of the decree in O.S. No. 13 of 1923 on the file of the Sub-Court of Trichinopoly. That suit was filed by the Imperial Bank of India against two defendants Narayan Chettiar and Vadivelam Pillai. A decree was passed in favour of the Bank by which the plaintiff was to proceed in the first instance against the first defendant and then against both the defendants if necessary. The Imperial Bank of India as the decree-holder filed E.P. No. 126 of 1923 praying for the arrest of the first defendant. In a later E.P. No. 157 of 1923 filed on the 13 August, 1923 the Bank applied for attachment of the moveables of the second defendant and an order for attachment was made but this petition was not pressed.

(2.) The present appellant is the sister's son of the second defendant and he filed E.P. No. 201 of 1923 for recognition of the assignment to him of the decree and for the arrest of both the defendants. This was contested by the first defendant who alleged that the petitioner was only a benamidar for the second defendant. It was not objected to by the second defendant and on 17 March, 1924, the Court recognised the assignment and ordered the arrest of both the defendants. The petition however was dismissed for non-payment of batta on 28 March, 1924. On the 29 of July, 1924, the first defendant Narayanan Chettiar filed an insolvency petition in the District Court of Ramnad and was adjudicated insolvent shortly afterwards. During the pendency of these insolvency proceedings, the assignee decree-holder without the leave of the Insolvency Court put in E.P. No. 236 of 1926 on the 29 September, 1926, in which he prayed for the arrest of the first defendant. After notice to the first defendant an order was passed for his arrest on 29 November, 1926, but no batta was paid and this was dismissed on 21 November, 1926. The first defendant obtained an order of discharge in insolvency on 13 December, 1930, and the Execution Petition with which this appeal is concerned was filed on the 31 August, 1932. In this petition the assignee-decree-holder prays for exeution against the assets of the second defendant, Vadivelam Pillai, now deceased in the hands of his legal representatives - respondents 2 to 5 herein.

(3.) Since this petition was presented nearly six years after the order dated 21 December, 1926, dismissing E.P. No. 236 of 1926 it was incumbent upon the petitioner to show that the application was not barred by limitation. He alleged several reasons why the petition was not barred. He claimed that on 5 September, 1929, the first defendant had sent him a letter acknowledging his debt. He alleged also that in the insolvency petition the first defendant had acknowledged his liability under the decree. Therefore he said that the petition was not barred by limitation and he referred to Secs.19 and 20 and Art. 182 of the Limitation Act.