PALANIYANDI MUDALIAR Vs. PALANIVEL MUDALI

JUDGEMENT

(1.) The question in this civil miscellaneous second appeal is one of limitation and it turns on the construction of Section 78 of the Provincial Insolvency Act.

(2.) The appellants are the legal representatives of the decree-holder in O.S. No. 875 of 1926 on the file of the District Munsiff's Court, Tiruvannamalai. The final decree in the suit was passed on 19 December, 1929. The judgment-debtor was adjudged insolvent on 30th March, 1930. The adjudication was annulled under Section 43 of the Provincial Insolvency Act by an order of the Subordinate Judge of Vellore, dated 7 December, 1942. Subsequent to the annulment on 26 March, 1943, an affidavit was filed by a clerk of the appellants in the Court of the Subordinate Judge of Vellore alleging that the appellants father died on 8th August, 1941, and that an amount of Rs. 1,600 was due to him by the insolvent under a decree in O.S. No. 875 of 1925, Tiruvannamalai District Munsiff's Court. The appellants preferred an appeal against the order of annulment to the District Court, North Arcot and the learned District Judge by an order, dated 18 August, 1943, confirmed the order of annulment, but he directed the vesting of the properties of the insolvent in the Official Receiver, North Arcot, for one year from 9 December, 1942, under Section 37 of the Provincial Insolvency Act. On nth October, 1943, the appellants for the first time filed an affidavit before the Official Receiver proving their claim and by an order, dated 25th November, 1943, the Official Receiver admitted their claim. The legal representatives of the decree-holder filed E.P. No. 469 of 1943 on 16 April, 1943, more than thirteen years after the final decree; but that execution petition was dismissed on 4 October, 1943, as not pressed. The present execution application was filed on 6 December, 1944.

(3.) The application, dated 16 April, 1943, is clearly barred by time unless the period between the date of adjudication and the date of annulment is excluded. Both the courts held that in the circumstances of the case, the said period cannot be excluded in computing the period of limitation.