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Una Vigesu Patro Vs. Vysyaraju Somayya Raju - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 40 of 1948
Judge
Reported inAIR1952Ori62; 18(1952)CLT54
ActsLimitation Act, 1908 - Sections 19
AppellantUna Vigesu Patro
RespondentVysyaraju Somayya Raju
Appellant AdvocateB.K. Pal and ;P. Misra, Advs.
Respondent AdvocateP.V.B. Rao, Adv.
DispositionAppeal dismissed
Cases ReferredParmasivan Pillat v. Aristotle ChaJcond
Excerpt:
.....india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - that is clearly laid down in baak of upper india ltd. here, it can equally be said that the present judgment-debtor is one who claims title through the official receiver in an insolvency, in the sense that the property bad once by law vested in the official receiver, but which on discharge from insolvency, and on the annulment of the insolvency proceedings re-vests in the insolvent. holds good under the provisions of the present provincial insolvency act......of the insolvency proceedings, there weretwo acknowledgments of the mortgage debt made by the official receiver on whom the insolvent's property was vested. he relies on ex. 2, dated 12-8-1944 and ex. 2-a, dated 2 12-1945, as constituting such acknowledgments which would save limitation under section 19, limitation act. exhibits 2 and 2-a are two sale proclamations under which the equity, of redemption in the property covered by the mortgage decree now under execution was sought to be sold and in the said sale proclamations the amount due under the mortgage decree was specifically mentioned, and the sale of the property is specifically stated to be subject to the mortgage decree. there can, therefore, be no doubt that these two documents would constitute an acknowledgment of the.....
Judgment:

Jagannadhadas, J.

1. This is an appeal by the judgment-debtor in proceedings arising out of the execution of a mortgage decree. The respondent obtained the final mortgage decree on 16-9-1941 and applied for execution in E. P. nO. 225 of 1941. While that execution petition was pending the judgment-debtor applied to the Insolvency Court for being adjudged an insolvent, on 10 12.42, in 1. p. 3 of 1942, and he was actually declared in solvent on 3 7-43, After the insolvency application was filed and before the judgment-debtor was declared insolvent the decree-holder on 9-1-43, got his execution petition dismissed and took no further proceedinga in execution during the pendency of the insolvency petition. On 9-2-46 the insolvent got a discharge and the respondent decree holder once again applied for execution of his mortgage decree in E. P. 43 of 1947 filed on 3.2.47. It will be seen that this application is beyond three years of the dismissal of the prior execution petition which was on 9 1-43. Prima facie, therefore, the present execution petition would be open to the objection that it is barred by limitation and that was the objection that the judgment-debtor took by an application filed under Section 47, Civil P. O. The answer of the decree-holder is that, during the pendency of the insolvency proceedings, there weretwo acknowledgments of the mortgage debt made by the Official Receiver on whom the insolvent's property was vested. He relies on Ex. 2, dated 12-8-1944 and Ex. 2-A, dated 2 12-1945, as constituting such acknowledgments which would save limitation under Section 19, Limitation Act. Exhibits 2 and 2-A are two sale proclamations under which the equity, of redemption in the property covered by the mortgage decree now under execution was sought to be sold and in the said sale proclamations the amount due under the mortgage decree was specifically mentioned, and the sale of the property is specifically stated to be subject to the mortgage decree. There can, therefore, be no doubt that these two documents would constitute an acknowledgment of the mortgage debt provided that the Official Receiver who was then in charge of the insolvency proceedings can be said to be the proper person to make the acknowledgment. The contention of the judgment-debtor in the Courts below was that the Receiver was not the agent of the judgment-debtor and could not, therefore, be said to be the: person who could properly acknowledge the debt on behalf of the judgment-debtor but this contention was not accepted by them, and the execution was directed to proceed and hence this second appeal.

2. Learned counsel for the appellant reiterated the same contention before us. According to his contention the Official Receiver in an insolvency proceeding is not an agent of the judgment-debtor. He has drawn our attention to a number of cases in which there has been some discussion of the question whether the Official Receiver can, in those circumstances, be said to be an agent of the insolvent or not. In particular he has relied on the case in Currimbliai v. Ahmedali.. A. I. R. (20) 1933 Bom. 91 which holds the view that ho is not such an agent. That case itself refers to an earlier case of the Madras High Court, where his Lordship Coutts-Trotter J. (as he then was was inclined to hold the contrary view. It is, however, unnecessary for us to go into that question which will arise in cases where the acknowledgment related to a money claim. But totally different considerations apply where the acknowledgment relates to a mortgage claim pending insolvency proceedings, as in this case. It is undisputed that the rights and remedies of a mortgagee are not in any way affected by the insolvency, but all the same there can be equally no doubt that the equity of redemption in the mortgaged property vesta in the Official Receiver : see Kala-chand Banerjee v. Jagannath, A. I, R. (14) 1927 P. C. 108 and that during the insolvency, it is only the Receiver who entirely represents the property mortgaged. That is really what amounts to vesting' of the right, title and interest of the judgment-debtor in the property and the position is authoritatively laid down by the Lordships of the Privy Oouncil also in Raghunath Das v. Sundar Das, 41 ind. App. 251 at p. 257. Therefore, so far as such claims are concerned, the question is not whether the Official Eeceiver is the agent of the judgment-debtor, but whether he is not himself the very person in whom the property of the original judgment-debtor vests and who, in that capacity is not entitled to make acknowledgments for the purpose of saving limitation. This depends upon whether a person in the position of an Official Receiver in an insolvency proceeding can reasonably be said to come within the wording of Sub-section (i) of Section 19, Limitation Act. That section is in the following terms:

'Where before the expiration of the period prescribed for a suit or an application, in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing, signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, the fresh period of limitation shall be computed from the time when the acknowledgment was so signed.'

It appears to me quite clear that a person in the position of an Official Receiver in an insolvency is, in relation to the equity of redemption which originally belonged to the judgments-debtor and which now vests in him, covered by the phrase the party against whom such property or right is claimed.' Learned counsel for the appellant contends that this phrase can refer only to the very person against whom the suit at the time is brought This contention, however, does not appear to be tenable, for if it is were so, in a hypothetical case where a person who makes an acknowledgment has, at that time, no interest at all, but who becomes entitled to the property are the date of the suit--as for instance in the case of a reversioner who had no interest in the property at the time but became entitled to it subsequently he will be in a position to make an acknowledgment which will bind him at a later date. But there is clear authority of the Privy Council for the position that an acknowledgment of claim, to save limitation, must be by a person who had an interest in the property claimed at the time. That is clearly laid down in Baak of Upper India Ltd. v. Robert Harculus Skinner, A. I. R. (29) 1942 P. C 67. We are, therefore, quite clear that the phrase 'the party against whom such property or right is claimed connotes the person against whom the claim is capable of being made at the time when the acknowledgment is made. Moreover, we are inclined to think that the present case is covered also by even the second portion of Sub-section (l) of 9. 19 which says that if the acknowledgment is 'by some person through whom he derives his title or liability' that acknowledgment will be binding upon the person, in order to save limitation. Here, it can equally be said that the present judgment-debtor is one who claims title through the Official Receiver in an insolvency, in the sense that the property bad once by law vested in the Official Receiver, but which on discharge from insolvency, and on the annulment of the insolvency proceedings re-vests in the insolvent. The Official Receiver and the insolvent stand, to each other, in the relation of predecessor, in-title and successor-in-title. The phrase 'by some person through whom he derives his title or liability' is equally apt to cover such relationship. We are therefore quite clear in our mind that the acknowledgment in the present case is by a person competent to make it and that it binda the judgment-debtor. This view is supported by the judgment of Philips J, in the case reported in Parmasivan Pillat v. Aristotle ChaJcond, A. I.R.. (5) 1918 Mad. 1122. It is no doubt true that in that case, the other learned Judge, Old field J. was not prepared to go as far as Philips J. on the ground that having regard to the terms of s. 354, Civil P. C., which was the governing provision relating to the powers of a Receiver in connection with the insolvency then in question, he was not prepared to say that the Receiver had the power to make arrangements in respect of the property for the future advantage of creditors. But in that very judgment his Lordship pointed out that the position would be different with reference to section so, Provincal Insolvency Act of 1907, which contained clear provisions relating to the powers of the Official Receiver as regards arrangements for the future advantage of creditors. A corresponding provision is now made in s. 69 of the present Insolvency Act of 1921. Therefore, the objection with reference to which His Lordship Oldfield J.hesitated to agree with the conclusion reached by Philips J. no longer exists, and the view expressed by Philips J. holds good under the provisions of the present Provincial Insolvency Act. The decision of the Courts below that the respondent's application for execution filed on 3-2-47, is not barred by time is correct and must be upheld and the appeal must be dismissed with costs.

Panigrahi, J.

3. I agree.


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