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Seeram Appala Raju Vs. the Official Receiver - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 399 of 1948
Judge
Reported inAIR1951Mad879a; (1951)1MLJ551
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(5); Provincial Insolvency Act, 1920 - Sections 37 and 37(1)
AppellantSeeram Appala Raju
RespondentThe Official Receiver
Appellant AdvocateC.V. Narasimha Rao, Adv.
Respondent AdvocateV. Suryanarayana, Adv.
DispositionAppeal allowed
Cases ReferredV. Venkataratnam v. V. Anjaneyalu
Excerpt:
- - in our opinion, since the decree was capable of being executed after the adjudication had been annulled & till that order was set aside, failure by the insolvent to apply for execution during that period would disentitle the official receiver from seekingto execute the decree after three years from 28-2-1944. 4. the learned counsel for the resp. 282), as well asto a judgment of our learned brother raghava raoj. we fail to seehow this case has any application to the facts ofthe present case......chekka rangayya. had to realise a certain sum of money from the present applt. & therefore the official receiver filed an appln. under section 4, provincial insolvency act, & the ct. passed an order directing the applt. to pay a sum of money as due to chekka rangayya to the official receiver of west godavari on 9-4-1941. according to the provisions of the act, this order is tantamount to a decree which is capable of execution. the decree was for a sum of rs. 8120-5-11. against the order directing the payment of this sum, an appeal was preferred to this ct. in c. m. a. no. 545 of 1941 which was, dismissed on 4-2-1943. in the meanwhile, the insolvent had died on 13-11-1941 & his legal representative had been brought on record on 22-9-1942. but this is a matter of minor importance.....
Judgment:

Govinda Menon, J.

1. The J. D. against whom a decree for a sum of money had been passed in I. P. No. 8 of 1927 is the applt. in this appeal. One Chekka Rangayya was adjudicated an insolvent on 17-11-1927 & his properties vested in the Official. Receiver of West Godavari. This Chekka Rangayya. had to realise a certain sum of money from the present applt. & therefore the Official Receiver filed an appln. Under Section 4, Provincial Insolvency Act, & the Ct. passed an order directing the applt. to pay a sum of money as due to Chekka Rangayya to the Official Receiver of West Godavari on 9-4-1941. According to the provisions of the Act, this order is tantamount to a decree which is capable of execution. The decree was for a sum of Rs. 8120-5-11. Against the order directing the payment of this sum, an appeal was preferred to this Ct. in C. M. A. No. 545 of 1941 which was, dismissed on 4-2-1943. In the meanwhile, the insolvent had died on 13-11-1941 & his legal representative had been brought on record on 22-9-1942. But this is a matter of minor importance because nothing depends on the question as to whether the legal representative was brought on record in time or not. As the Official Receiver had obtained the decree on 9-4-1941 which was confirmed on appeal on 4-2-1943 he applied for executing the same against the applt. on 14-7-1943 by E. P. No. 59 of 1943. This petn. underwent various adjournments & finally it was dismissed with costs on 28-2-1944.

2. Thereafter an appln. for annulling the adjudication had been taken before the insolvency Ct. with the result that on 18-11-1944 the adjudication of Chekka Rangayya had been annulled. The result of this order according to Section 37, Provincial In-solvency Act is that the insolvent was relegated to the position which he occupied prior to the date on which the appln. for adjudication had been made. This order annulling the adjudication was again taken up to this Ct. & in C. M. A. No. 641 of 1945 this Ct. set aside the order annulling the adjudication & restored the adjudication to its original state on 3-9-1947. The present appln. E. P. No. 8 of 1948 out of which this appeal arises was filed on 7-2-1948. The learned Dist. J. held that the appln. was not barred because according to him the period of three years which has to be computed from 28-2-1944 expired during the period when the order annulling the adjudication was in force & therefore the Official Receiver had three years from 3-9-1947 to file the appln. for execution.

3. Mr. V. Ramaswami Aiyar for the applt. contended that even though there was an order annulling the adjudication on 18-11-1944, it was open to the insolvent who had been relegated to the position which he occupied prior to the adjudication to have applied for executing the decree & he not having done so within three years of 28-2-1944, i.e., before 28-2-1947, the present appln. is barred under Article 182 (5), Limitation Act. On the other hand Mr. V. Suryanarayana for the Official Receiver very strenuously contends that the Official Receiver was 'eo nomine' the D. H. & when by reason of the order annulling the adjudication it became impossible for him to execute the decree there was something in the nature of an impediment or embargo put upon the Official Receiver from executing the decree with the result that when that impediment was removed or the embargo dissolved, it was possible for the Official Receiver to have availed of the provisions of Article 181, Limitation Act, & apply for execution of the decree. In other words the learned counsel contends that there was an obstacle put upon the Official Receiver from executing the decree by the annulment of the adjudication. In our opinion the argument of the learned counsel for the applt. has to be accepted. 'Ex concessis', after the adjudication was annulled, it is possible for the quondum insolvent to have applied for execution of the decree obtained by the Official Receiver because the decree was for moneys due to him & not to the Official Receiver. Mr. Suryanarayana contends that the capacity in which the Official Receiver obtained the decree is not only as representing the estate of the insolvent but he had another role, i.e., as representing the creditors of the insolvent. We are afraid that we cannot accede to that contention. When money is due to a person who has been adjudicated an insolvent & the Official Receiver in whom the estate of that person has become vested files a suit to realise that sum of money, it cannot be said that he is representing any of the creditors of the insolvent in realising that sum of money. Quite a large body of case law of this Ct. have held on interpreting Section 37, Provincial Insolvency Act that after an ajdudication has been annulled it is open to the quondum insolvent to take such steps regarding his property which he could ordinarily have done unless there had been an order Under Section 37(1), Clause (2), Provincial Insolvency Act vesting the property in a trustee or in the Official Receiver. There is no such vesting, in this case at all. If there had been such a vesting, it would have been all the worse for the Official Receiver, because, then, even the present argument based on an impediment or embargo or an obstacle cannot be put forward by the Official Reciever. In our opinion, since the decree was capable of being executed after the adjudication had been annulled & till that order was set aside, failure by the insolvent to apply for execution during that period would disentitle the Official Receiver from seekingto execute the decree after three years from 28-2-1944.

4. The learned counsel for the resp. invited ourattention to passage at p. 282 of 'Chhattar Singhv. Kamal Singh', (49 All 276, at p. 282), as well asto a judgment of our learned brother Raghava RaoJ. in 'V. Venkataratnam v. V. Anjaneyalu' (C M ANos. 454 & 455 of 1947). The facts of these twocases cannot be said to be in any way approachingthe points in controversy in this case. Ourlearned brother had to construe the meaning ofthe word 'closed' in an appln. & he was of opinion that in the particular context of the circumstances of that case the word 'closed' shouldbe understood as that for the time being thematter had proceeded out of the ordinary roleof pending proceedings. The appln. to restoreshould be deemed to be a revivor. We fail to seehow this case has any application to the facts ofthe present case. If our view that during the timewhen the insolvency stood annulled & before thatorder was set aside it was possible for the quonduminsolvent to have applied for execution of thedecree is right, then there is no impediment orany obstacle to execute the decree. The decreewas in full force. It can be executed by whomsoever is competent to execute the same. To takean illustration, supposing the Official Receiver, aftergetting the decree, had assigned it over to a thirdparty who did not put in any appln. for executionwithin three years of getting the decree & thereafter re-assigned it in favour of the Official Receiver, can be said that the Official Receiver canignore the time during which the decree had beenin the ownership of the third party, having beenassigned in his favour, when seeking to execute thedecree? The answer is an emphatic 'no'. We aretherefore of opinion that since the decree couldhave been executed between 28-2-1944 & 9-3-1947 &since; no steps were taken towards that end, theOfficial Receiver's appln. E. P. No. 8 of 1948 dated7-2-1948 is barred under Article 182 (5), LimitationAct. The appeal is therefore allowed & the E. P.No. 8 of 1948 is dismissed with costs throughout.The costs will come out of the estate.


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