Alfred Henry Lionel Leach, C.J.
1. The appellants have been adjudicated insolvents by an order of this Court, dated the 28th October, 1941. They challenge the validity of that order on two grounds. In the first place they say that no act of insolvency was committed, and in the second place that the evidence does not prove that there was a debt due to the petitioning creditor on the date of his application.
2. On the 29th January, 1941, a creditor, who had filed a suit against the appellants, obtained an order for the attachment before judgment of certain immovable property belonging to them. The suit was successful, and on the 27th July, 1941, a decree was passed against the appellants for Rs. 10,500. On the llth September, 1941, the decree-holder applied for the sale of the property which was already under attachment. The petition for adjudication of the appellants was filed on the 17th October, 1941, and the act of insolvency alleged was that the debtors' property had been under attachment for more than 21 days. Section 9 (e) of the Presidency Towns Insolvency Act states that a debtor commits an act of insolvency
if any of his property has been sold or attached! for a period of not less than 21 days in execution of the decree of any Court for the payment of money.
The appellants contend that C1. (e) of Section 9, does not apply in this case. They, say that as the attachment was effected before judgment, it cannot be deemed to be an attachment in execution of the decree.
3. Order 38, Rule 11 of the Civil Procedure Code provides that where property is under attachment before judgment and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of the decree to apply for a re-attachment of the property. Therefore, where property has been attached by an order of attachment before judgment and the plaintiff obtains a decree for payment of money, all that he has got to do is to apply for an order of the Court directing the sale of the property attached. When such an application is made, the attachment automatically becomes an attachment in execution of the decree. In my judgment, no other construction is open. If, however, authority is wanted, it is to be found in Meyyappa Chettiar v. Chidambaram Chettiar (1923) 46 M.L.J. 415 : I.L.R. Mad. 483 and in Dalayya v. Swidara Narayana : AIR1936Mad91 . In Meyyappa Chettiar v. Chidambaram Chettiar (1923) 46 M.L.J. 415 : I.L.R. Mad. 483, the question was whether the words 'property attached in execution' to be found in Order 21, Rule 57, Civil Procedure Code include property attached before judgment, when there has been a decree followed by an execution petition for the purpose of bringing the attached property to sale. The majority view was that those words did include property attached before judgment. Waller, J., observed that once it has been found that for one purpose an application to execute converts an attachment before judgment into an attachment in execution, the conclusion is inevitable that the conversion operates for all purposes. He added that the same question had been argued before him with reference to Section 9 of the Presidency Towns Insolvency Act, and in this connection said:
Under that section, an act of insolvency is committed where any part of a man's property has been attached in execution of a decree for over 21 days. It would, in my opinion, be anomalous to hold that an attachment before judgment takes the judgment-debtor out of the section, even though execution 'had been proceeding against his property for more than the prescribed period.
In Dalayya v. Smidara Narayana : AIR1936Mad91 , Varadachariar, J., delivering the judgment of the Bench said,
As a question of 'principle, if an attachment before judgment can be treated as an attachment for purposes of execution at all, it is difficult to see what necessity there is for an order of Court. A more reasonable view seems to us to be to hold that from the time the decree-holder applies for execution, he elects to avail himself of the attachment before judgment and from that moment the attachment before judgment becomes an attachment available for purposes of execution.
It follows from what I have already said that I am in entire agreement with these observations and that I consider the learned Judge sitting in insolvency was right in holding that there had been an attachment of the appellants' property for more than 21 days, within the meaning of Section 9 (e) of the Presidency Towns Insolvency Act.
4. The appellants' second contention can be disposed of in a few words. A creditor who asks for an order of adjudication against his debtor must, of course, prove that the debtor owes him at least Rs. 500, at the time the application is made. In this case the petitioning creditor claimed that there was due to him Rs. 3,825 on a promissory note, dated 12th May, 1940. The petition was supported by an affidavit setting out this fact and stating that the amount due on the promissory note had not been paid. The appellants filed a counter-affidavit in which they alleged that no consideration had passed and went on to aver that the petitioning creditor had been paid. In an affidavit in reply, the petitioning creditor denied these allegations. The evidence before the Court consisted of the two affidavits of the petitioning creditor and the affidavit of the appellants which contained these somewhat conflicting pleas. The learned Judge accepted the affidavits of the petitioning creditor as being true and I see no reason to doubt the correctness of his decision.
5. In my opinion the appeal fails and should be dismissed with costs which should be paid out of the estate of the insolvents.
6. I agree.