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Bans Gopal Vs. Mewa Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All461
AppellantBans Gopal
RespondentMewa Ram and anr.
Excerpt:
- .....even after the deduction of eight months and 28 days. mr. agarwala thereupon argued that the date of adjudication must be taken to be the date of the petition for insolvency i.e., 8th december 1924, and relied on the provisions of clause (7), section 28, provl. insol. act. it is enacted there that an order of adjudication shall relate back to, and take effect from the date of the presentation of the petition on which it is made. it is not, however, stated there that the date of adjudication shall be the same as the date of the petition. that would not be correct, because until the order of adjudication is passed, the provisions of section 28(2) stopping the remedy to creditors do not come into operation and the decree-holder is entitled to execute his decree between the date of.....
Judgment:

Dalal, J.

1. A decree was passed on 29th March 1922. There was an application for execution in September 1923. A payment was certified on 16th February 1924, to the effect that a sum of Rs. 70 was paid in December 1923. The present application is one of 20th October 1927.

2. The learned Judge of the lower appellate Court held that limitation should count from 16th February 1924, when the certificate of payment was filed and the period of eight months eighteen days between the adjudication of the judgment-debtor as an insolvent and the annulment of the adjudication should be deducted under the provisions of Section 78(2), Provl. Insol. Act. That Court has made a slip in regarding the certificate as an application. Under Article 182, the period of limitation runs from the date of the application, and a certificate of payment is not an application as held recently in a Full Bench ruling Joti Prasad v. Sri Chand A.I.R. 1929 All. 629(F.B.). The period of limitation must therefore run from December 1923 and in that case the application of 20th October 1927, would be time barred, even after the deduction of eight months and 28 days. Mr. Agarwala thereupon argued that the date of adjudication must be taken to be the date of the petition for insolvency i.e., 8th December 1924, and relied on the provisions of Clause (7), Section 28, Provl. Insol. Act. It is enacted there that an order of adjudication shall relate back to, and take effect from the date of the presentation of the petition on which it is made. It is not, however, stated there that the date of adjudication shall be the same as the date of the petition. That would not be correct, because until the order of adjudication is passed, the provisions of Section 28(2) stopping the remedy to creditors do not come into operation and the decree-holder is entitled to execute his decree between the date of presentation of the petition of insolvency and the order of adjudication, unless a definite stay has been ordered by the insolvency Court in which case alone the period of limitation will be suspended in running.

3. The other argument of Mr. Agarwala was that on 8th December 1924, Bans Gopal in his insolvency petition acknowledged the debt of Mewa Ram. Unfortunately for the creditor, however, a sum of Rs. 200 only is mentioned. Acknowledgment of a sum of Rs. 200 cannot be taken as an acknowledgment of a sum of Rs. 585 as claimed by the decree-holder. It is true that if no definite sum had been mentioned and there had been an acknowledgment in general terms the amount of the debt could have been discovered from the evidence as mentioned in Expln. (1), Section 19,Lim. Act. In the present case, however, there is a definite acknowledgment of Rs. 200 and if this is to be used to save limitation, it could be done only with respect to the sum acknowledged, and not with respect to any sum that may be proved to be due on that date.

4. For these reasons I hold that the decree-holder is entitled to execute the decree for Rs. 200 and not for a larger sum. Execution shall be taken out for that sum according to the application of 20th October 1927. Parties shall bear their own costs throughout.


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