T K KALIAPERUMAL NAICKER Vs. OSRAMCHANDRA AYYAR

JUDGEMENT

(1.) The facts of this Second Appeal may be stated as follows: The 1 defendant, Somu Asari, executed a deed of mortgage, Ex. A, on 27 October 1907, in favour of one Govinda Asari, for Rs. 100, payable in two years with interest at 12 per cent per annum and a higher interest in default. Govinda Asari, the mortgagee, died on 19 August 1914 leaving two sons, Amirthalinga Asari and Chinnasami Asari. In a partition between the sons the suit debt fell to the share of Amirthalinga Asari. He was declared an insolvent and his property vested in the Official Receiver of Tanjore who files this suit for recovery of money due on the mortgage deed. The suit was filed on 26 October 1921. The suit was originally filed against four defendants, and we may ignore the fourth defendant for the present. The second defendant purchased the property from 1 defendant. The 3 defendant again parchased the property in execution of a decree against the 2nd defendant. The 3 defendant filed an application for being declared an insolvent on 16 November 1920. Under Section 20 of the Provincial Insolvency Act, the Official Receiver was appointed interim Receiver on 17 January 1921. On 20 December 1921, an adjudication order was passed. On 25 April 1922 the plaintiff applied that the Official Receiver of Tanjore in the capacity of the Receiver of the estate of the 3 defendant, should be made a defendant and he was accordingly made the 5 defendant.

(2.) The only point raised in the lower appellate Court and argued before me is whether the suit is barred by limitation by reason of the 5 defendant being impleaded in the suit on 25 April 1922, which was more than 12 years from the date when the cause of action arose. Mr. Watrap S. Subrahmania Ayyar, who appears for the appellant, relies on Section 28 (7) which says that an order of adjudication shall relate back and take effect from the date of the presentation of the petition on which it is made. He contends that the effect of the order of adjudication, and the vesting order which followed, is that it must be taken that the adjudication and the vesting were made on 16 November 1920, the date of the application; and if the suit was filed after that date, without the Official Receiver as a party, it was defective, and as the defect was cured by bringing him as a party on 25 April 1922, the suit is barred under Section 22 of the Limitation Act.

(3.) Order 22 of the Civil P. C. deals with the devolution of interest by the operation of law and not by act of parties. Though there is one rule dealing with the position of a plaintiff becoming an insolvent there is no rule dealing with a defendant becoming an insolvent. If there is no provision of law then the case of the defendant becoming an insolvent is strictly like any other case of devolution. The Official Receiver in insolvency may be regarded as a continuation of the original defendant. If the suit was filed prior to the order of adjudication, the only possible person who can be made defendant is the party himself, and all that can be done is that if he is declared an insolvent afterwards to bring as a party the Official Receiver on whom the interest has devolved, if one so chooses. But now, Act 5 of 1920, Section 29, provides for the case of a. defendant who has been adjudicated an insolvent. Section 29 says: Any Court in which a suit or other proceeding is pending against a debtor shall, on proof that an order of adjudication has been made against him under this Act, either stay the proceeding: or allow it to continue on such terms as such Court may impose.