1. The short question that falls for determination in this Civil Revision Petition is whether the petitioner-plaintiff has a right to sue on the date of the institution of the suit.
2. The petitioner-plaintiff filed a Small Cause suit No. 362 of 1965 for recovery of a sum of Rs. 700/- and odd being half the share payable to him by defendant in the suit. It was her case that she and the defendant were co-judgment-debtors in O. S. 88 of 1961 on the file of the Court of the Subordinate Judge, Kavali, in which a joint and several decree was passed against them. In the execution of the decree in E. P. 230 of 1962, the plaintiff's property was brought to sale and she was compelled to pay the entire amount totalling Rs. 1400 and odd in full satisfaction of the decretal amount. She, therefore, brought a suit for contribution against the co-judgment-debtor, the defendant, on 24-9-1965. Unfortunately for her she was adjudged insolvent on 1-8-1964 i.e., nearly one year prior to the filing of the suit. She then filed a petition under Order 1 Rule 10 C. P. C. for impleading the official receiver as defendant in the suit. This petition was resisted by the respondent-defendant on the ground that it was barred by limitation and that the plaintiff had no locus standi to institute the suit. The learned Subordinate Judge, Kavali, on a consideration of the arguments advanced before him, held that the present petition was not within time and, therefore, dismissed the I. A. and consequently dismissed the suit also on the same day. The revision is filed against this order.
3. The learned counsel for the petitioner, Sri N. Subba Reddy contends that the lower Court did not consider the provisions of the new limitation Act which provides that 'where the Court is satisfied that the omission to include a new plaintiff or defendant was due to mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted at any earlier date'.
He submits that the case it fit for remand to the lower Court for a re-consideration of the issue in the light of the proviso to Section 21 of Limitation Act.
4. On the other hand the learned counsel for the respondent contends that as the petitioner had been adjudged insolvent on 1-8-1964, she was not competent to institute the suit on 24-9-1965 as the right to sue for contribution had vested in the official receiver under Section 28(5) of the Insolvency Act provides 'that the property of the insolvent for the purposes of this section shall not include any property which is exempted by the Code of Civil Procedure, 1908 or by any other enactment for the time being in force from liability to attachment and also in execution of a decree'. Under Section 60(e) of the Civil Procedure Code, 'a mere right to sue for damages'. is exempted from attachment. As such it is only a right to sue for damages that does not vest in official receiver being a right in personam. In the instant case, the suit was for contribution which does not find a place in the list mentioned under Section 60 of the Civil Procedure Code. I think the contention of the learned counsel for the respondent that the plaintiff-petitioner had no right to sue on 24-9-1965 is in accordance with law. Therefore the question of the application for amendment being within time or not does not arise in the present case. No doubt if the suit had been filed by the official receiver beyond the period of limitation, the Court would give the benefit of proviso to Sec. 21 of the Limitation Act, to the official receiver if it was found later that the right vested in the insolvent. But in the instant case, the position being that the suit has been filed by a person who was not competent to institute a suit, the question of applicability of the proviso to Section 21 of the Limitation Act does not arise.
5. I, therefore, see no reason to interfere with the finding of the lower Court. The revision is accordingly dismissed. No orders as to costs.
VGP/ D. V. C.
6. Revision dismissed.