A N B RAMALINGA AYYAR FIRM THROUGH PARTNER RAMALINGA AYYAR Vs. NMRAYALU AYYAR, NAGASAMI AYYAR FIRM THROUGH ONE OF ITS PARTNERS NMNAGASAMI AYYAR

JUDGEMENT

(1.) THE question raised by the appeal relates to the construction of the proviso to Section 78 of the Provincial Insolvency Act (V of 1920). That section enacts that where an order of adjudication has been annulled, in computing limitation in respect of an execution application, the period from the date of the order of adjudication to the date of the order of annulment shall be excluded. This rule is subject to the proviso that it does not apply to a debt provable but not proved.

(2.) THE decree that the respondent seeks to execute was obtained subsequent to the appellant's adjudication. It was obtained not only against the appellant, but also against the Official Receiver, who was impleaded as a party. It is the latter that under the rules has to admit or reject proof of debts. In this case, he was himself added as a defendant and the decree was passed in his presence. Although the Act provides a formal mode of proving a debt, which has not been here adopted, we are prepared to hold, having regard to the facts adverted to, that the debt has been proved and that the proviso in question does not apply. We do not in this case wish to lay down any general rule as regards the meaning of the word "proved" occurring in the other sections of the Act. THE appeal fails and is dismissed, but we make no order as to costs, as the respondent has taken the point now raised for the first time in appeal.