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Uma Shanker Srivastava Vs. S.N. Misra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal Nos. 1556 and 2051 of 1964
Judge
Reported inAIR1972All144
ActsProvincial Insolvency Act, 1920 - Sections 28(7) and 34
AppellantUma Shanker Srivastava
RespondentS.N. Misra
Appellant AdvocateGayan Prakash, Adv.
Respondent AdvocateG.K. Tewari and ;Deoki Nandan, Advs.
Excerpt:
civil - unarguable debts - sections 28 and 34 of provincial insolvency act, 1920 - suit for recovery of arrears of rent filed - defendant took plea that he was declared insolvent and not liable to make any payment - held, arrears arising after the date of such adjudication by court - not to be regarded as provable debts - decree can be passed. - - 5. the learned counsel for the respondent-judgment debtor placed strong reliance on the decision of the rangoon high court in m. but to my mind, the full bench decision of the lahore highcourt is a better reasoned decision;.....of 1964 has been filed by the judgment-debtor and the other connected appeal has been filed by the decree-holder. 2. suit no. 520 of 1959 was filed by the decree-holder against the judgment-debtor for recovery of arrears of rent for the period january 1955, to december, 1957. this suit was decreed on 21-12-1960. when the decree was put into execution the judgment-debtor raised several objections. the principal objection was that no part of the decree was executable because the arrears of rent in respect of which the suit was filed and decree obtained were debts provable under section 34 of the provincial insolvency act. the judgment-debtor pleaded that he had made an application on 19-3-1957 for being adjudged an insolvent. the insolvency court by an order dated 18th october, 1957.....
Judgment:

A.K. Kirty, J.

1. Both the appeals arise out of the same execution proceedings. Appeal No. 1556 of 1964 has been filed by the judgment-debtor and the other connected Appeal has been filed by the decree-holder.

2. Suit No. 520 of 1959 was filed by the decree-holder against the judgment-debtor for recovery of arrears of rent for the period January 1955, to December, 1957. This suit was decreed on 21-12-1960. When the decree was put into execution the judgment-debtor raised several objections. The principal objection was that no part of the decree was executable because the arrears of rent in respect of which the suit was filed and decree obtained were debts provable under Section 34 of the Provincial Insolvency Act. The judgment-debtor pleaded that he had made an application on 19-3-1957 for being adjudged an insolvent. The Insolvency court by an order dated 18th October, 1957 adjudged the judgment-debtor to be an insolvent He was subsequently discharged by an order dated 4-5-1962. On these facts the judgment-debtor claimed that no part of the decree was executable because the entire amount was provable as debt under Section 34 above.

3. The executing court held that in respect of rent which had fallen due prior to 18-10-1957 the decree would not be executed, because arrears of rent for that period were provable in the Insolvency Court. The executing court held that the decree in respect of arrears of rent which fell due after 18-10-1957 was executable. An appeal was preferred by the judgment-debtor and a cross-appeal was preferred by the decree-holder. The lower appellate courthas dismissed both the appeals and has affirmed the decision of the executing court. As already mentioned, in this court one appeal has been filed by the judgment-debtor and another appeal has been filed by the decree-holder.

4. I will take up the decree-holder's appeal first. The learned counsel for the appellant contended that the view taken by the courts below that the decree-holder was entitled to execute the decree only in so far as it was in respect of arrears of rent which had fallen due after 18-10-1957 is erronenous in law. It was urged that under Section 28(7) of the Insolvency Act the date of adjudication of the judgment-debtor as insolvent related back to and took effect from the date of the application i. e. 19-3-1957. It was submitted that this being so the decree holder legally was entitled to prove only such claims before the Insolvency Court in respect of arrears of rent as had accrued due prior to 19-3-1957. but in respect of arrears of rent which accrued due after that date the decree-holder was not entitled to prove the same in the Insolvency Court. Therefore the decree was executable in respect of arrears of rent which had accrued due after 19-3-57 and not after 18-10-57 as held by the courts below. In support of this contention the learned counsel placed reliance on a Full Bench decision of the Lahore High Court in Kewal Krishna Kalia v. Special Official Receiver for Punjab and Delhi Provinces for Estate of Sohan Lal Insolvent AIR 1939 Lah 384 (FB). He also relied on a decision of this Court in Sisram v. Ram Chander Mal : AIR1930All104 , I have heard the learned counsel for the parties and perused the judgment in the Full Bench case noted above. It is true that different views were taken In several other High Courts. The Lahore High Court, after having taken Into consideration the different views of different High Courts, ultimately by an unanimous judgment held that Section 34 is governed by Section 28(7) of the Provincial Insolvency Act. I respectfully agree with the view of the Lahore High Court.

5. The learned counsel for the respondent-judgment debtor placed strong reliance on the decision of the Rangoon High Court in M. K. T. C. Venkatachalam Chattvar v. Collector, Bassein, AIR 1937 Rang 50 and a number of other cases referred to but dissented from by the Lahore High Court in the aforesaid case. It is true that much can be said for and against the rival contentions. But to my mind, the Full Bench decision of the Lahore HighCourt is a better reasoned decision; and I am, therefore, inclined to follow it. I do not consider it necessary to discuss the view expressed by the Rangoon High Court in the aforesaid case or similar view taken in any other case.

6. The learned counsel for the judgment-debtor relied on a decision of this Court in Bans Gopal v. Mewa Ram : AIR1930All461 . In that case, however, the precise question which arises in this case did not arise. The question considered in that case was as to whether Section 23(7) controls Section 78 of the Act. This case, therefore, has no direct bearing on the point arising in the instant case.

7. Upon the aforesaid view the appeal of the decree-holder would deserve to be partly decreed, as contended by the learned counsel. The learned counsel for the Judgment-debtor, however, attempted to raise a new question in this Court to the effect that the decree in question itself was a nullity. The submission was that as no leave had been obtained by the decree-holder in filing the suit, even though insolvency proceedings were pending, the suit itself was incompetent and the decree must be treated to be a nullity. No such objection was raised in the lower court. The point sought to be raised cannot be treated to be a pure question of law or a pure question of jurisdiction. I am not prepared to allow a point of such nature to be raised for the first time in second Appeal.

8. Another point was raised to the effect that since the judgment debtor, as alleged, was under obligation to pay rent from the very inception of the tenancy the entire amount of unpaid rent was provable under Section 34 of the Provincial Insolvency Act. The argument was that no new liability was created but the debt was in respect of a pre-existing liability. This contention was sought to be supported by the decision of the Calcutta High Court in Lachmi Narayan Marwari v. Amulyadhan Auddy, ILR (1950) 1 Cal 628. In that it was held that rents due from a monthly tenant, who is adjudged an insolvent for a period subsequent to his adjudication and prior to his discharge would constitute 'a debt provable' within the meaning of Section 34(2) of the Provincial Insolvency Act. From a perusal of the judgment in the said case itself it will appear that there are contrary views on the point. I would prefer to follow the decision of the Oudh Judicial Commissioner's Court in Kuer Behari Lal v. Kalka, 67 Ind Cas 549 : (AIR 1922 Oudh 73), which was dissented from by the learned Judge deciding Lachmi. Narayan Marwari's case (Supra). Learned counsel for the decree-holder in this connection placed reliance on the observations made by a Division Bench of this Court in Lachman v. Jarbandhan : AIR1928All193 to the effect that rent in respect of a period still to come in existence is not a debt at all, as the obligation is not complete. Although the point did not directly arise in this case, yet the observations made therein, to some extent support the contention of the learned counsel for the decree-holder.

9. In the result, Appeal No. 1556 of 1964 is dismissed with costs. Appeal No. 2051 of 1964 is partly allowed. The decree-holder will be entitled to execute his decree for the arrears of rent which had fallen due after 19-3-1957. In this appeal the parties shall bear their own costs.


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