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Sita Ram Vs. Kishan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All580a
AppellantSita Ram
RespondentKishan Lal
Excerpt:
- .....adjudication annulled.3. it is argued with reference to these provisions that the application for execution of decree by arrest of the judgment-debtor, the applicant before me, could not have been made at any time between the 22nd january 1927, the date of the order of protection, and the 20th december 1928, the date of the order of annulment, and that the present application having been made only two days after the protection order ceased to be operative should not be thrown out on the ground of limitation, having regard to the proviso to section 31 already referred to. the learned advocate for the applicant has argued that section 31 cannot override the provisions of section 78, which specifically deals with the question of limitation. it is true the latter section is not applicable.....
Judgment:

Niamatullah, J.

1. This is an application for revision against an order passed by the Judge of Small Causes at Cawnpore allowing execution of a decree passed in favour of the respondent on 9th May 1922. It is not disputed that an application for execution was made on 7th June 1925 and that it was within time. The last application for execution was made on 22nd December 1928,. as to which the appellant pleads the bar of limitation. The lower appellate Court has overruled that plea on the ground that the applicant was adjudged insolvent on 6th March 1926 on his own application, dated 11th May 1925. The adjudication was annulled on 20th December 1928. The lower Court excluded the entire period between the 11th November 1925 and the 20th December 1928 apparently with reference to Section 78, Insolvency Act. It has been contended before me that the respondent is not entitled to exclusion of this period, because he did not prove his debt, a condition the existence of which is essential for attracting the provisions of Section 78, Insolvency Act. It is admitted on behalf of the respondent that the debt, to which the decree related, was not proved in insolvency proceedings. Under these circumstances I think the applicant's contention must prevail. Section 78, Insolvency Act, provides that where an order of adjudication has been annulled, on computing the period of limitation prescribed for an application for execution if a decree which might have been made but for the order of adjudication, the period from the date of the order of adjudication to the date of the order of annulment shall be excluded:

provided that nothing in this section shall apply to a suit or application in respect of a debt provable but not proved under this Act.

2. The order of the lower Court cannot, therefore, be supported on the ground on which it proceeds. It has been argued that the application for execution which is directed against the person of the judgment-debtor, and not against his property, movable or immovable, must be considered to be unaffected by the law of limitation, having regard to the protection order obtained by the applicant under Section 31, Prov. Insol. Act. It is admitted by the parties that the applicant applied on 31st March 1926, after he was adjudged insolvent, for protection from arrest or detention. Such order was passed on 22nd January 1927, and continued to be in force till the 20th December 1928, when the adjudication was annulled. The present application for execution, as already stated, was made on 22nd December 1928, The proviso to Section 31, Prov. Insol. Act, lays down that:

no such order shall operate to prejudice the rights of any creditor in the event of such order being revoked or the adjudication annulled.

3. It is argued with reference to these provisions that the application for execution of decree by arrest of the judgment-debtor, the applicant before me, could not have been made at any time between the 22nd January 1927, the date of the order of protection, and the 20th December 1928, the date of the order of annulment, and that the present application having been made only two days after the protection order ceased to be operative should not be thrown out on the ground of limitation, having regard to the proviso to Section 31 already referred to. The learned advocate for the applicant has argued that Section 31 cannot override the provisions of Section 78, which specifically deals with the question of limitation. It is true the latter section is not applicable and that Section 31 makes no reference to the question of limitation. At the same time effect must be given to the proviso to Section 31 so far as to relieve the decree-holder from the consequences of the order of protection, which was obtained by the applicant and which the proviso declares cannot in any way prejudice the rights of the decree-holder. To give effect to the contention of the applicant as regards the question of limitation raised in the appeal would be to prejudice the applicant at least so far as his application to obtain execution by arrest of the judgment-debtor is concerned. But for the order of adjudication if is obvious that the decree-holder could have applied for a similar process at any time between the 22nd January 1927 and the 20th December 1928. Having been deprived of this opportunity within that time and having applied promptly after the protection order ceased to be operative, he should not be prejudiced by sustaining the plea of limitation raised by the applicant. Under the circumstances of the case, I am of opinion that the proviso to Section 31, Prov. Insol. Act, affords protection to the decree-holder against the plea of limitation which would otherwise have been successful.

4. In the view of the case that I have taken this application for revision is dismissed. Under the peculiar circumstances of this case I direct the parties to bear their own costs throughout.


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