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Sripada Venkatasubba Rao Vs. Namagiri Venkateswaralu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad165
AppellantSripada Venkatasubba Rao
RespondentNamagiri Venkateswaralu
Cases Referred and Subbaraya Chettiar v. Lakshmi Ammal
Excerpt:
.....than the official receiver, but clearly the vital feature that distinguishes that case is that the official receiver had been asked to take proceedings himself and he refused to do so. the result clearly is, when we consider the point of view of the defendants, that if these suits had been disposed of between the date of the plaints and the date when the permission was granted, nothing whatever could have prevented a decree being given in favour of the defendants dismissing them. so that, even assuming that from september onwards these suits were no longer invalid, the result clearly is that it is not until september the proper plaints were filed against the defendants. it seems to me this is clearly a case analogous to those cases in which the plaintiff seeks permission to amend a..........that is a decision which does not affect the powers of an insolvent and it lays down that if the official receiver refused to take action under section 53 or section 54, insolvency act, a creditor can, so to speak, take his place and apply to the court under those sections. that ruling is certainly an authority for the position that applications can be maintained by persons other than the official receiver, but clearly the vital feature that distinguishes that case is that the official receiver had been asked to take proceedings himself and he refused to do so. in the present case it cannot be asserted that before the plaints were filed the insolvent had applied to the official receiver and requested him to file the plaints on his behalf. the second case is reported in tatireddy v......
Judgment:
ORDER

King, J

1. The petitioner in these two revision petitions was adjudicated insolvent in November 1929. In April 1932 he applied for his discharge which was granted in November. Between the date of his application and the order upon it, that is to say, in June 1932, he filed the plaints in the present suits. They were filed as small cause suits for small sums of money due on dealings. In September 1932 he obtained the permission of the insolvency Court to continue prosecuting these two suits. The decision in the suits, however, was that by reason of the fact that he filed these suits while he was still an undischarged insolvent they could not be maintained and even though the insolvent obtained the permission of the insolvency Court subsequently, that did not cure the original defect. The two suits were accordingly dismissed and the petitioner has applied in revision to this Court.

2. It is not denied that the authority to which the lower Court refers, namely Subbaraya Chettiar v. Lakshmi Ammal AIR 1918 Mad 294, is directly in point. It is there held, without any reservation whatever, that a person who is an undischarged insolvent on the date of the suit has no right to sue. My attention has, however, been drawn to two subsequent rulings, which, it is argued, modify or overrule this statement of the law. The first is Ananthanarayana Ayyar v. Rama Subba Ayyar, AIR 1924 Mad 345. That is a decision which does not affect the powers of an insolvent and it lays down that if the Official Receiver refused to take action Under Section 53 or Section 54, Insolvency Act, a creditor can, so to speak, take his place and apply to the Court under those sections. That ruling is certainly an authority for the position that applications can be maintained by persons other than the Official Receiver, but clearly the vital feature that distinguishes that case is that the Official Receiver had been asked to take proceedings himself and he refused to do so. In the present case it cannot be asserted that before the plaints were filed the insolvent had applied to the Official Receiver and requested him to file the plaints on his behalf. The second case is reported in Tatireddy v. Ramachandra Rao AIR 1921 Mad 402. In that case litigation was undertaken by a person who was not yet adjudicated insolvent and it was held that his subsequent adjudication did not prevent him from prosecuting an appeal. There again stress is laid upon the fact that when the litigation was begun the plaintiff was under no disability. This cannot be any authority for the position that when litigation is undertaken by a plaintiff who is obviously under disability, that litigation can be valid. It seems to me, therefore, that neither of these two rulings deals with a similar situation to the present and Subbaraya Chettiar v. Lakshmi Ammal AIR 1918 Mad 294 still governs the facts in this particular case and I am bound by it. It is quite clear, therefore, that when these suits were filed they were not maintainable.

3. The next argument which is sought to be put forward is that the subsequent permission granted by the Court in September cures the defect. I have not permitted this argument to be developed because in my opinion another consideration would render it wrong for me if the argument were successful to use my discretion in favour of the petitioner. What has happened in this case is that the petitioner, without any attempt at requesting the Official Receiver to take action, has towards the end of the period of limitation thought fit to file these two suits himself. He subsequently discovered that the suits were defective and that it was necessary to apply to the insolvency Court for permission. The result clearly is, when we consider the point of view of the defendants, that if these suits had been disposed of between the date of the plaints and the date when the permission was granted, nothing whatever could have prevented a decree being given in favour of the defendants dismissing them. So that, even assuming that from September onwards these suits were no longer invalid, the result clearly is that it is not until September the proper plaints were filed against the defendants. Now I have examined the dates and discovered that if these suits had been filed in the first instance in September both of them would have been barred by limitation. It seems to me this is clearly a case analogous to those cases in which the plaintiff seeks permission to amend a plaint and it is a well known principle of law that such an amendment should not be allowed if its effect would be to deprive the defendant from pleading the bar of limitation. Seeing, therefore, that the plaintiff has through lack of diligence in this case not filed valid plaints until more than three years after the cause of action had arisen, I see no reason to interfere with the decree of the Court below dismissing the suits. These petitions are accordingly dismissed with costs.


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