BALIRAM Vs. SUPADASA

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The facts leading to this application for revision are shortly these: On 12th March 1928, the plaintiff non-applicant brought the present suit against the defendant-applicant in the Small Cause Court, Akola, on the basis of two simple money bonds, dated 19th February 1921, and 31st April 1921, and a pronote dated 4th September 1922. The debts due under the two bonds admittedly fall due on 4th December 1921, and therefore the cause of action to recover the same accrued on that date, and that in respect of the debt due on the pronote accrued on 14th September 1922.

(2.) THE claim was thus apparently barred by time, but the plaintiff claimed exclusion of all the period from 13th August 1923, the date on which he had presented an application to have the defendant declared insolvent, to 14th November 1927, when the final order was passed in the insolvency case "annulling" the adjudication of the defendant as an insolvent. This exclusion of time was claimed under the provisions of Sections 28(2), 78(2), Provincial Insolvency Act, and Section 14, Limitation Act.

(3.) IT is argued on behalf of the applicant that the case was not covered either by the provisions of Section 28(2) or Section 78(2), Insolvency Act, or Section 14, Limitation Act, and, for reasons to be stated later, I consider this contention to be well-founded. From the certified copies of the proceedings in the insolvency case filed in the lower Court it appears that the application for insolvency was presented by the plaintiff-creditor on 13th August 1923, and an ex parte order adjudging the present defendant an insolvent was passed on 3rd May 1924. The defendant then applied to have the order in question set aside on the ground that he was not served with notice as required by Section 19, Provincial Insolvency Act, and claimed that the petition of the plaintiff creditor should be dismissed under Section 25 ibid. The insolvency Court rejected this application on 19th February 1926, but as it held that notice was not properly served it annulled the adjudication order and proceeded further, upon the original application, to pass a fresh order of adjudication on 9th April 1926, during the pendency of the defendant's appeal against the aforesaid order of 19th February 1926 in the Court of the District Judge, Akola.