PONNATH KALYANI AMMA S SON EACHARAN NAIR Vs. CHERIKKOTTIL SAYED ROWTHER S SON FAMILY MANAGER, CHINNAYYA ROWTHER (DIED)

JUDGEMENT

(1.) The petitioner is the legatee under a will of two ladies, Amman and Channammu, of a mortgage executed in their favour on 8 June, 1931, by the respondent. The mortgage was repayable on 13 July, 1932. The "respondent was adjudged insolvent on 3 January, 1933, but the adjudication was annulled on 27 August, 1943. The suit out of which this civil revision petition arises was filed on 13 July, 1944, for a money decree, the plaintiff having given up his security. The suit was dismissed by the lower Court on the ground that it was barred by limitation. The petitioner relied on Section 78(2) of the Provincial Insolvency Act and sought an exclusion of the period from the date of the order of adjudication to the date of the order of annulment. It is not denied that if that exclusion is made, the suit would be in time. It was however contended by the respondent, and that contention found favour with the Court below, that Section 78(2) of the Act did not apply because the debt is one provable but not proved under the Act. It is admitted that the petitioner had not proved the debt in the insolvency of the respondent. The petitioner's contention in the Court below was that the debt is not one provable under the Act. This contention was not accepted by the lower Court. The same point is raised before me on the petitioner's behalf.

(2.) It seems to me that the question is directly covered by the decision in Chocka-linga v. Manicka in which Leach, C.J. and Happell, J., held on a consideration of Secs.28(2) and (6), 34 (2), 44 and 47 that a secured debt is not ordinarily provable in insolvency and that it is provable only in the three contingencies contemplated by Sub-sections (1), (2) and (3) of Section 47; or in other words that except where a secured creditor realises his security or relinquishes it or values it, he is not bound to prove his debt in the insolvency of his debtor. Chockalinga V/s. Manicka no doubt arose under Section 44 of the Act and did not deal with any question of limitation; but the point that arose in that decision would equally apply where the question that falls to be considered in applying the provisions of Section 78(2) of the Act is whether a mortgage debt is or is not provable in insolvency.

(3.) The lower Court assumed that at the instance of a prior mortgagee, the mortgaged property had been sold up in execution of his mortgage decree some time before the order of annulment. It seems this assumption is not correct and from a certified copy of the suit register relating to that suit the. petitioner's counsel states that neither the petitioner nor his predecessors-in-title were parties to the suit of the prior mortgagee and that their rights therefore are left unaffected by that decree and any execution proceedings which might have followed it.