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Kundan Lal Vs. Bishambhar Nath - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in131Ind.Cas.252
AppellantKundan Lal
RespondentBishambhar Nath
Excerpt:
.....of december, 1927. if this period is excluded, the application for execution is clearly within, time. i am clearly of opinion that the present application is without substance and ought to be..........limitation prescribed for any suit or any application for the execution' of a decree (other than a suit or application in respect of which the leave of the court was obtained under sub-section (2) of section 28) it might have baen brought or made for the making of an order of adjudication under this act, the period from 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 debtproveablebut not proved under this act,' it ia to be observed that under section 28 (1), an order of adjudication is to relate back to, and to take effect from, the date of the presentation of the petition on which it is made, the decree holder, therefore, is entitled to the exclusion of the period between the 20th of.....
Judgment:

Sen, J.

1. This is an application by the judgment-debtor and has been made under Section 25 of the Provincial Small Cause Courts Act.

2. On the 18th of January, 1919, Bishambhar Nath obtained a simple money-decree against Kundan Lal the applicant from the Court of Small Causes at Oawnpore, He applied for execution of that decree on the 20th of February, 1922. The present application for execution was made on the 5th of April, 1930. Ex facie, this is belated application and is beyond time. It appears, however, that the judgment-debtor had applied for being declared an insolvent on the 3rd of July, 1922. This was followed by an order adjudicating him a bankrupt, but the said order was annulled on the 7th of December, 1927. Section 78 (2) of the Provincial Insolvency Act (Act V of 1920) provides that 'where an order of adjudication has been annulled under this Act, in computing the period of limitation prescribed for any suit or any application for the execution' of a decree (other than a suit or application in respect of which the leave of the Court was obtained under Sub-section (2) of Section 28) it might have baen brought or made for the making of an order of adjudication under this Act, the period from 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 debtproveablebut not proved under this Act,' It ia to be observed that under Section 28 (1), an order of adjudication is to relate back to, and to take effect from, the date of the presentation of the petition on which it is made, The decree holder, therefore, is entitled to the exclusion of the period between the 20th of February, 1922, and the 7th of December, 1927. If this period is excluded, the application for execution is clearly within, time.

3. It has been contended that the decretal debt was proveable under Act V of 1920 but was not proved. This is a question of fact. This does not appear to have been raised in the Court below. The circumstances militate against the hypothesis that the decretal debt in favour of Bishambhar Nath was proved. Bishambhar Nath was mentioned as one of the creditors of Kundan Lal in the application for adjudication. There is no reason to suppose that he did not put forward his decree either before the Court of Insolvency or before the Receiver. I am clearly of opinion that the present application is without substance and ought to be dismissed. I accordingly do so, but without costs as the opposite party is not representated.


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