VETTAKKE KAKKATTU MANAKKAL PARAMESWARAN NAMBUDRIPAD Vs. SESHAN PATTAR

JUDGEMENT

(1.) The facts of this case may be stated as follows: - In O.S. No. 476 of 1913 on the file of the District Munsif's Court of Palghat the 1 respondent obtained a decree against one Narayanan Akkitheripad who was the Karnavan of the Kakkat Mana (a Nambudri family). The decree was dated 16 March, 1914. By M.P. No. 1068 of 1914 the decree-holder applied to arrest the defendant. He was arrested on 27 July 1914, but was let off some time after, to take insolvency proceedings, on furnishing security. The judgment-debtor then filed I.P. No. 11 of 1914. He was adjudicated an insolvent on 31 August 1914. In 1916 the junior members of the defendant's family filed a suit impleading the Official Receiver for a declaration that the property in the hands of the said Narayanan belonged to the family, that the debt was his personal debt and that the family was not liable for it. That suit was filed on 18 December, 1916, in the Subordinate Judge's Court of Calicut. It was afterwards transferred to the District Court of South Malabar which gave the declarations sought by the plaintiff, one of them being "that the said properties are not liable for the debts described in the aforesaid Insolvency Petition No. 11 of 1914 as they were not contracted for tarwad necessity". This decree was dated 2 May, 1919. Meanwhile in February, 1919, the insolvent died. There was an appeal to the High Court (Appeal No. 353 of 1919). The High Court confirmed the decree of the Judge subject to one modification, namely, one of the declarations granted, that is the one quoted above, was deleted. The decree of the High Court was dated 7 December, 1920. On 21 August, 1922, a petition was filed for bringing his legal representative on record for purposes of execution. This was ordered without notice. On 9th February, 1923, by E.P. No. 58 of 1923, the decree-holder applied to execute the decree against the family represented by the legal representatives. The objections now taken were then also taken, but were not decided. The present petition, E.P. No. 272 of 1925, was filed on the 6 April 1925. The defendant's representatives raised the objection that the application is either incompetent or at any rate is barred by limitation. The Subordinate Judge and on appeal the District Judge overruled the defendant's objections. Hence this second appeal.

(2.) We may start with the position that the decree in O.S. No. 476 of 1913 was obtained against Narayanan in two capacities (1) personally, and (2) as manager of the family. It was as if there were two defendants in the case, the 1 defendant being Narayanan himself and the 2nd defendant being the Kakkat Mana represented by its manager Narayanan. The family was a judgment-debtor and the decree was executable against the family. But the family was not directly on the record; it was on record as represented by Narayanan. When Narayanan died in February 1919, other persons had to be brought on record to represent the family. They were so brought in August, 1922. But, except that there was a change in the person representing the family, the family was a judgment-debtor throughout. If the execution petition of 1923, E.P. No. 58 of 1923, was in time, the present petition which was filed within 3 years from it is also in time. Mr. B. Sitarama Rao, the learned vakil who appeared for the respondents and who argued the case with his usual fairness and considerable ingenuity contended that the petition of 1923 was not barred. He contended (1) that the insolvency proceedings operated as an order staying execution of the original decree in the suit of 1913 within the meaning of Section 15 of the Limitation Act, and (2) that, though the stay order may be as regards one judgment-debtor only, still, for the purposes of Section 15 of the Limitation Act, the period from the date of the Insolvency Petition in August 1914, up to the death of the insolvent in February 1919, should be excluded from computation not only against the insolvent but as against the family also. He also contended that the period between 2 May, 1919, the date of the District Judge's decree in the suit of 1916 and 7th December, 1920, the date of the High Court's decree, should be excluded because during that period the District Judge's decree prevented his taking out execution. If these periods are excluded from computation the application of August 1922 was in time, being within three years from the date of the first execution petition of 27 July, 1914.

(3.) On the first point the learned Advocate-General who appeared for the appellants contended that an order adjudicating a person as an insolvent does not operate as an order staying execution of the decree against him; and he relied on Ramaswami Pillai v. Govindasami Naicker (1918) I.L.R. 42 M. 319 : 36 M.L.J. 104, a case under the Provincial Insolvency Act (III of 1907) followed in Sidhmj Bhojraj V/s. Alli Haji (1922) I.L.R. 47 B. 244, a case under the Presidency Towns Insolvency Act (III of 1909). He contended that an order to operate as a stay order must be an order completely and not partially stopping execution of the decree, and, as the decree may be executed with the leave of the Court even after insolvency, he contended that the insolvency proceedings did not operate as a stay order within the meaning of Section 15. It may be observed that under the Act V of 1920 insolvency proceedings can operate only as a partial stay, for unless the insolvent is protected by a special order they do not operate as staying execution regarding the person, but under the Act of 1907 they did operate to stop execution against person and property except that with the leave of the Court, execution may proceed. Mr. Sitarama Rao contended that the two decisions abovementioned are wrongly decided, and he relied upon a number of decisions to show that a partial stay order may be governed by Section 15 of the Limitation Act. We think it is unnecessary to discuss this question any further, because we think the second contention of the respondent must fail and the appeal must be allowed.