SUBRAMANIA AIYAR Vs. VENKATARAMA RAJU

JUDGEMENT

(1.) This revision petition arises out of an order made by the District Court of East Tanjore in an appeal under the Provincial Insolvency Act. The petitioners here stood surely under a composition scheme in I.P. No. 10 of 1931 on the file of the Sub-Court of Tiruvarur. The debt due by the first respondent in this revision petition is shown as item No. 16-o in the composition schedule. The foot-note to that schedule indicates that the terms on which that particular debt was to be included in that schedule were finally settled only when the scheme came before the Court for approval, because in respect of that debt there was a litigation pending at the time in O.S. No. 256 of 1931 on the file of the District Munsiff's Court of Tiruvarur, for a declaration that the promissory note on foot of which that amount was claimed to be due had been discharged. The Court therefore took care to indicate that this item would be payable under the scheme of composition "only if the creditor is finally successful in O.S. No. 256 of 1931". That suit was dismissed by the Court of first instance. An appeal preferred by the debtor was returned by the Appellate Court on a requisition that the appellant should pay a higher court-fee. That question, 1 am told, is now the subject-matter of a revision petition before this Court.

(2.) In the meanwhile, the creditor in order to escape the bar of limitation in respect of this claim on the promissory note filed O.S. No. 70 of 1933 on the file of the District Munsiff's Court of Tiruvarur and obtained a decree thereon. It is not suggested that any appeal has been filed against that decree.

(3.) In this State of things, the creditor put in two applications, one on the execution side and the other to the Insolvency Court, to recover the amount of his decree from the sureties, to the extent to which they have rendered themselves liable under the surety bond given in the insolvency composition. The execution petition was transferred to the Insolvency Court, by some procedure which I am not able to understand and the two petitions were dealt with together. Both the Courts below have made an order calling upon the sureties to make the payment in terms of the surety bond. The learned District Judge rightly points out various difficulties in the way of ordering the execution petition. (See paragraph 4 of his judgment.) But as the merits of the contentions were practically the same in both the petitions he deals with the matter by a single order.