GUNTUR AKKAYYA Vs. PATHURI APPAYYA

JUDGEMENT

(1.) This is an appeal from a judgment of Happell, J., under Clause 15 of the Letters Patent. The question involved is one of construction of Section 78(2) of the Provincial Insolvency Act, 1920.

(2.) On the 25 February, 1933, the appellant obtained a decree against the respondent for the payment of Rs. 1,148-6-8 and costs. During the pendency of the suit the respondent applied to the Court of the Subordinate Judge of Bapatla for his adjudication in insolvency and on the 4 July, 1933, an order of adjudication was passed. The respondent was given one year in which to apply for his discharge. He did not make the application and on the 11th November, 1934, a creditor applied for the annulment of the order of adjudication under Section 43 of the Act. On the 21 November, 1934, the Court annulled the order of adjudication and under Section 37 passed an order vesting the insolvent's property in the Official Receiver for administration for the benefit of the creditors. On the 12 April, 1935, the appellant tendered proof of his debt which the Official Receiver accepted. In the year 1939, the amount was, however, scaled down to Rs. 663-3-8 under the provisions of the Madras Agriculturists Relief Act.

(3.) The Official Receiver realised some of the insolvent's assets and on the 10 May, 1940, he paid to the creditors a dividend. The appellant's share was Rs. 123-8-0. On the 19 January, 1943, the Official Receiver wrote to the creditors saying that no saleable property was left and on the 12 February, 1943, the Subordinate Judge passed an order closing the proceedings. It transpired, however, that the Official Receiver still had in his possession Rs. 771 belonging to the insolvent and on the 9 December, 1943, the appellant applied for the execution of his decree by the attachment of this sum. The respondent opposed the application on the ground that the appellant's decree was barred by the law of limitation. The District Munsiff of Guntur and the Subordinate Judge of Guntur on appeal found for the appellant, but on appeal by the respondent to this Court, Happell, J., held that the application for execution was out of time. The plaintiff has appealed from this decision.