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Gopa Somanna (Died) and ors. Vs. Vakina Ramachandra Chowdari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1947)2MLJ572
AppellantGopa Somanna (Died) and ors.
RespondentVakina Ramachandra Chowdari and ors.
Cases ReferredLingappa v. Official Receiver
Excerpt:
- .....unconditionally it is as if there were no adjudication at all at any time and that therefore a decree obtained without leave is valid. in reaching, this conclusion the learned judge relied upon the decisions of this court in ramaswami kottadiar v. murugesa mudaliar : (1897)7mlj229 and kothandarama rowther v. murugesa mudaliar : (1903)13mlj372 and upon the decision of a single judge of this court in lingappa v. official receiver, bellary (1937) 47 l.w. 366. i respectfully agree with the conclusion of somayya, j. following the said decision i overrule this objection.3. in this case the debt was incurred prior to the date of the presentation of the insolvency petition and was allowed to be proved in the insolvency, though the decree itself was passed after the adjudication. the mere.....
Judgment:

Satyanarayana Rao, J.

1. The first judgment-debtor is the appellant. He raised the objection to the execution of the decree that the execution petition was barred by limitation. He was adjudicated an insolvent on 2nd October, 1931, in I.P. No. 7 of 1931, Sub-Court, Ellore, which was filed on 23rd January, 1931. The suit in which the present decree was passed was instituted on 24th February, 1931 and decreed on 12th December, 1931. The adjudication was annulled on 15th July, 1940 and the present execution petition was filed on 9th December, 1943. The judgment-debtor says that the decree is a nullity as no leave of the insolvency Court was obtained to institute the suit, as the adjudication in October, 1931, relates back to the date of the petition. Secondly he contends that the period between the date of adjudication and the date of the annulment ought not to be excluded in computing limitation as the decree was obtained after the adjudication.

2. In my view there is no substance in either of the contentions. As stated already the adjudication was annulled and it is the very judgment-debtor who allowed the decree to be passed without objection that leave to institute the suit was not obtained who now raises the question of the invalidity of the decree. The point was considered by Somayya, J., in Ratnavelu Chettiar v. Fransiscu Udayar : AIR1945Mad388 , in which the facts are similar and he held that when once the adjudication was annulled unconditionally it is as if there were no adjudication at all at any time and that therefore a decree obtained without leave is valid. In reaching, this conclusion the learned Judge relied upon the decisions of this Court in Ramaswami Kottadiar v. Murugesa Mudaliar : (1897)7MLJ229 and Kothandarama Rowther v. Murugesa Mudaliar : (1903)13MLJ372 and upon the decision of a single judge of this Court in Lingappa v. Official Receiver, Bellary (1937) 47 L.W. 366. I respectfully agree with the conclusion of Somayya, J. Following the said decision I overrule this objection.

3. In this case the debt was incurred prior to the date of the presentation of the insolvency petition and was allowed to be proved in the insolvency, though the decree itself was passed after the adjudication. The mere fact that the decree was passed after the adjudication does not make it a debt incurred after the adjudication. The liability was the antecedent liability, antecedent to the date of the petition and it is a provable debt and was in fact proved. In these circumstances there is no reason for not giving to the decree-holder the benefit of Section 78(2) of the Provincial Insolvency Act. It is common ground that if this period is excluded the execution is in time.

4. In the result this appeal is dismissed with costs.


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