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Sakala Rattam and ors. Vs. Pulikonda Musalayya and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1933Mad565
AppellantSakala Rattam and ors.
RespondentPulikonda Musalayya and anr.
Cases ReferredKissendoss v. Khatau Makanjee Spinning
Excerpt:
- .....petition must have been signed by the debtor and his pleader and the identity of the decree debt mentioned therein cannot reasonably be doubted. there was thus an acknowledgment on 22nd october 1921, and the decree debt is mentioned in ex. c, the statement of the insolvent on 13th february 1924. the examination was for the purpose of ascertaining his assets and liabilities at the time and not on the date of the insolvency petition and even otherwise, the reference to the decree debt without mentioning any payment towards its discharge amounts to an implied admission that the liability under the decree was then subsisting. in this view it was not disputed that the petition would be within time as against respondent 1 and the order of the lower courts cannot be upheld. it is.....
Judgment:

Lakshmana Rao, J.

1. This appeal arises out of an application for execution and the sole question for determination is whether the execution petition is barred by limitation. The decree was passed on 6th October 1920, and the petition was filed on 18th March 1926. Ordinarily therefore the petition would be barred by limitation, but the appellant relies on the inclusion of the decree debt by the judgment-debtor in his insolvency petition dated 22nd October 1921, and his statement to the Official Receivers on 13th February 1924, wherein also this debt is mentioned. The inclusion of the decree debt in the insolvency petition which has to be signed by the insolvent amounts to an acknowledgment within the meaning of Section 19, Lim. Act: vide Kissendoss v. Khatau Makanjee Spinning, Weaving Co. Ltd. (1916) 36 IC 389, and Ex. D-l, the true copy of the petition signed by the pleader, was admitted in evidence without any objection. The original petition must have been signed by the debtor and his pleader and the identity of the decree debt mentioned therein cannot reasonably be doubted. There was thus an acknowledgment on 22nd October 1921, and the decree debt is mentioned in Ex. C, the statement of the insolvent on 13th February 1924. The examination was for the purpose of ascertaining his assets and liabilities at the time and not on the date of the insolvency petition and even otherwise, the reference to the decree debt without mentioning any payment towards its discharge amounts to an implied admission that the liability under the decree was then subsisting. In this view it was not disputed that the petition would be within time as against respondent 1 and the order of the lower Courts cannot be upheld. It is therefore set aside and the petition is remanded to the Court of first instance for disposal on the merits as against respondent 1. Respondent 1 will pay the costs of the appellant in all the Courts and the appeal will stand dismissed with costs of respondent 2 against whom it was not pressed.


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