SATYABADI SAHU Vs. PURI BANK, LTD

JUDGEMENT

(1.) The present appellants with one Gadadhar Sahu, a member of the same family, were adjudicated insolvents on 19-3.193?. The respondent, Puri Bank Ltd., before that date, obtained a decree against these persona and had already put the said decree into execution once or more than once. Thereafter, the proceedings in execution continued until the order of adjudication was annulled on 27-10-1942 under Section 43, Provincial Insolvency Act, as the insolvents had never prayed for an order of discharge under Section 41 within the period limited. Subsequent to the order of annulment the respondent, Puri Bank, proceeded to take out fresh execution of the decree. By this time, one of the insolvents had died, and the present appellants objected that the decree was barred by limitation. The respondent bank claimed that the decree was not barred by limitation, because of the provisions of Art. 182(5) of the schedule to the Limitation Act, as the respondent bank had filed execution proceedings even during the pendency of the insolvency proceedings. They filed execution petitions in the regular course against these appellants as well as against the son of the deceased Gadadhar. The appellants contended that the respondent could only have proceeded in execution after the annulment, if he could bring his case within Section 78(2), Provincial Insolvency Act, and that his case was excluded by the proviso.

(2.) The Subordinate Judge held in favour of the respondent that the mere filing of the several execution petitions saved limitation, if they were according to law as required under Order 21, Rule 11, Civil P.C., and he, therefore, allowed execution to proceed and rejected the claim of the present appellants that the execution case was barred by limitation. Against that order, the present appeal has been filed. On behalf of the appellants it has again been urged that the respondent could succeed only if he brought his case within Section 78(2), Provincial Insolvency Act, and that, as there was no permission granted by the Insolvency Court for the filing of the execution petitions during the pendency of the insolvency proceedings, those petitions could not be treated as in accordance with law for the purposes of Art. 182(5), Limitation Act, and, therefore, those petitions for execution would not save limitation and it was further contended that, as the debt due to the respondent bank was provable but not proved under the Provincial Insolvency Act, the proviso to Sec. 78(2) would prevent the respondent bank from claiming any exemption of time under that section.

(3.) Now, the learned Advocate for the respondent bank has attempted to support the decision of the lower Court on three grounds: first, that as the son of Gadadhara was a person against whom the Bank proceeded in execution and the son would be liable for the father's debts from the family property, therefore, he might proceed to execute the decree obtained against the father, Gadadhara, against the son after the death of the father, Gadadhara, and, for these reasons, the execution cases filed during the pendency of the insolvency proceedings should be regarded as in accordance with law. In connection with this argument, it was urged that the father might have been representing the family including the son in the suit, in which the decree was passed, and, thus, the son might be personally liable under the decree. The second point urged by the respondent is that, as the form of the executions petitions Was in accordance with Order 21, Rule 11, Civil P.C., therefore, the said petitions must be treated as being in accordance with law for the purposes of Art. 182(5), Limitation Act even though the prayer in those execution petitions was for reliefs, which it subsequently proved the Court could not grant. Thirdly, it was urged that by reason of certain proceedings, to which I would later refer, the debt due to the respondent bank had actually been proved in the insolvency proceedings and therefore, the proviso to Section 78(2), Provincial-Insolvency Act would not bar the respondent bank from relief under that section.