1. The question raised in this miscellaneous second appeal is one of limitation. The decree which is sought to be executed by the application under appeal was one passed on 29th of July, 1932. Under the decree the first defendant was directed to pay a sum of Rs. 1385 with interest and costs. In default of payment a charge decree was given over certain properties in the hands of the second defendant. A right to apply for a personal decree in case the sale proceeds of the charged, properties were insufficient was also reserved. E.P. No. 1465 of 1934 was filed on 3rd July, 1934, for the arrest of the first defendant but it was dismissed for nonpayment of batta. Then, E.P. No. 1826 of 1937 was filed on 20th August, 1937- It was also for the arrest of the first defendant and was dismissed for non-payment of batta. The next one was E.P. No. 1408 of 1939 filed on 7th August, 1939, for arrest again of the first defendant and was dismissed as not pressed. Then comes the present application. E.P. No. 1134 of 1942 filed On 16th June, 1942. The question whether the present execution application is barred depends upon the answer to the question whether the two prior applications were applications in accordance with law. The facts which are relevant for the consideration of this argument are that the first defendant was adjudicated an insolvent on 9th November, 1934, in I.P. No. 216 of 1934, and was discharged in 1935 or thereabouts. Two points were raised. One is that E.P. No. 1826 of 1937 was riled for the arrest of the first defendant and that the arrest of the first defendant could not be had as the decree debt should be deemed to be extinguished as the result of the discharge order in I.P. No. 216 of 1934. The next point raised is that there was really no discharge absolute, that the insolvency proceedings still continued, that consequently E.P. No. 1826 of 1937 and the next application could not be filed without the leave of the insolvency Court and that therefore they are not applications in accordance with law. On the question whether if the insolvency proceedings are still pending an execution application filed without the leave of Court is one in accordance with law, reference is made to the decision in Jagadisan Pillai v. Narayanan Chettiar (1935) 71 M.L.J. 180 : I.L.R. 59 Mad. 759, which held that it was not. The same view was adopted by Burn, J., in Nagaratnam Pillai v. Ramaswami Iyer A.I.R. 1939 Mad. 195. But that question does not arise in this case as all the parties proceeded upon the assumption that there was an order of discharge in this case. It is argued by Mr. S. Panchapagesa Sastti, the learned advocate for the appellant, that the order that is exhibited in the case is not a final order of discharge and that without the production of any later order of absolute discharge it must be taken that the discharge is not proved and that the insolvency proceedings must therefore be deemed to continue. We have on record the order in the insolvency proceedings dated 12th March, 1935. That was an order of discharge on an application under Section 41 of the Provincial Insolvency Act filed for grant of an absolute order of discharge. The Subordinate Judge before whom the application came for hearing stated thus.:
I do not think it equitable to give him an absolute discharge on these contentions. He is directed to pay at the rate of Rs. 8 per month for 15 months and then to apply for absolute discharge. The discharge is suspended for 15 months.
The further order, if any, of the insolvency Court is not produced. It is suggested on the other side that this order itself is one which should be taken to operate as an order of absolute discharge after the expiry of 15 months, that at any rate there must have been an order of absolute discharge granted later and that the production of such an order was not necessary as the fact of absolute discharge was not disputed. The learned District Judge in paragraph 3 of the judgment under appeal says that it was common ground that the first defendant was discharged in 1935. It is therefore not open to the appellant to raise the question of fact in second appeal while there is an admission made before the lower Court that there was an order of discharge passed in the year 1935. In this view it is enough to say that the decisions in Jagadisan Pillai v. Narayanan Ckettiar 2 and Nagaratnam Pillai v. Ramaswami fyer1 referred to above do not call for any consideration and they do not apply there were no insolvency proceedings pending after 1935.
2. The other argument is that the order of discharge put an end to the debt under the decree and that therefore the later execution applications of 1937 and 1939 asking for reliefs which could not possibly be granted by the executing Court are not steps in aid of execution. An order of discharge has the effect provided in Section 44 of the Insolvency Act. An order of discharge, it is provided shall release the insolvent from all debts provable under the Act except in three cases which are mentioned in Section 44, Clause 1. I shall proceed on the assumption that the order of discharge released the insolvent from the debt due under the decree in execution. Even so, the position is, that the previous applications asked for reliefs which were no longer available against the first defendant by reason of the discharge order. In Ramachandra Naidu v. Tirupathi Naidu3, Spencer and Krishnan, JJ., laid down that an execution application might give a fresh starting point of limitation even though the relief asked for is not allowed by the decree sought to be executed. There a decree expressly provided that the judgment-debtors were not personally liable for the payments directed under the decree. Execution applications were filed asking for the arrest of the judgment-debtors which was expressly prohibited by the terms of the decree. The decree-holder obviously knew what was contained in the decree and the question was whether the applications which asked for the arrest of the judgment-debtor operated as steps in aid of execution. The learned Judges said this:
In this case the petitioner sought to save limitation by treating as steps in aid of execution two execution petitions in which the decree-holder prayed for the arrest of the judgment-debtors in spite of the fact that the decree to be executed did not make the defendants personally liable. The lower Courts have dealt with the case on the, basis that execution petitions asking for relief which the executing Court was not competent to grant are not ' in accordance with law.' The present is not a case of competence or incompetence. It has been held, in cases where the decree did not give the relief asked for, that an execution petition may yet give a fresh starting point for limitation, e.g., applications to sell properties not liable to be sold and applications against a deceased judgment-debtor.
In this case there is no question of competency or incompetency of the Court. The Court was competent to execute the decree personally against the first defendant but only by reason of discharge granted under the Insolvency Act the decree debt must be deemed to have been extinguished. If that fact had been brought to the notice of the Court, it could not give effect to it. But supposing the defendant did not attend and the Court was not appraised of the fact of discharge, then the Court would have passed an order directing his arrest and it could not possibly be contended that the Court was not competent to order the arrest. Thus there is no question of the competency of the Court. That being so, the above decision applies to this case. This decision was followed by King, J., in Nanjunda Chetti v. Lakshmanan Chettiar1, where, as here, the prior execution application asked for the arrest of the respondent while the decree was only against the assets of a deceased person in the judgment-debtor's hands. King, J., referred to the decision in Ramachandra Naidu v. Thirupathi Naidu2 and applied it to the case before him. I hold that the case before me is also governed by the decision in Ramachandra Naidu v. Thirupathi Naidu 2. The appeal is accordingly dismissed with costs. No leave.