Skip to content


Ramaswami Pillai Vs. Govindaswami Naicker - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1919)36MLJ104
AppellantRamaswami Pillai
RespondentGovindaswami Naicker
Cases ReferredDoraswami Padayachi v. Vaidylinga Padayachi
Excerpt:
- - in that view section 15 clearly applied......under the composition. he is the assignee of the bond and the pronote. the question is whether his present claim is barred by limitation. mr. bhashyam aiyangar for the respondent, contended that section 15 of the limitation act saved the bar. his argument was that the order of adjudication was tantamount to an order to stay all further proceedings in the matter. as we read section 16, clause (2) of the provincial insolvency act, what the order of adjudication effects is not an absolute stay, but a direction that before a suit is brought a condition precedent should be complied with, namely the obtaining of leave to sue from the court. in our opinion, section 15 of the limitation act does not operate to save limitation in cases where the suit could have been instituted on complying with.....
Judgment:

1. This second appeal can be disposed of on the short point of limitation. The bond and the pronote sued on were executed in February and April 1910. The suit was brought in July 1915. In October 1910 the 1st defendant applied to be adjudged an insolvent and was so adjudged in December 1911. In July 1914 that adjudication was annulled because there was a composition with the creditors. Apparently the present plaintiff received no dividends under the composition. He is the assignee of the bond and the pronote. The question is whether his present claim is barred by limitation. Mr. Bhashyam Aiyangar for the respondent, contended that Section 15 of the Limitation Act saved the bar. His argument was that the order of adjudication was tantamount to an order to stay all further proceedings in the matter. As we read Section 16, Clause (2) of the Provincial Insolvency Act, what the order of adjudication effects is not an absolute stay, but a direction that before a suit is brought a condition precedent should be complied with, namely the obtaining of leave to sue from the Court. In our opinion, Section 15 of the Limitation Act does not operate to save limitation in cases where the suit could have been instituted on complying with the preliminary requisite in that behalf. The learned vakil relied on Shunmugam v. Moideen I.L.R. (1884) Mad. 229. That case proceeded on the construction of the particular order before the Court. Moreover the authority of that decision is much shaken by the decision of the Judicial Committee in Beti Maharani v. Collector of Etawah I.L.R. (1872) ALL. 198. As regards In re General Rolling Stock Company : Joint Stock Discount Company's Claim it is clear that what the Court of Appeal laid down was that so long as the matter is pending before the Bankruptcy Court, the liquidator can admit a claim to proof and the fact that leave to prove the debt was given or refused does not affect the question. In Unni Koya v. Umma I.L.R. (1911) Mad. 622 : 411 M.L.J. 577 this Court held on a construction of Section 273 of the Code of Civil Procedure that there was a total prohibition against persons other than the decree-holder from executing the decree. In that view Section 15 clearly applied.

2. Having regard to Section 9 of the Limitation Act and to the observation of the Judicial Committee in Soni Ram v. Kanhaiya Lal I.L.R. (1913) All. 227 we are unable to agree with the District Judge that Section 15 of the Limitation Act is applicable to this case. Vide also Doraswami Padayachi v. Vaidylinga Padayachi (1917) 83 M.L.J. 46. For these reasons we think that the suit was barred by limitation. We must therefore, reverse the decree of the District Judge and restore that of the District Munsif with costs here and in the Court below.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //