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V.S. Natesa Chettiar Vs. V.E.R.M. Annamalai Chettiar by His Authorised Agent, Samia Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in73Ind.Cas.213
AppellantV.S. Natesa Chettiar
RespondentV.E.R.M. Annamalai Chettiar by His Authorised Agent, Samia Pillai
Excerpt:
execution of decree - assignment of decree by decree-holder--transfer of decree for execution--objection to executability of decree, whether maintainable--provincial insolvency act (iii of 1907), sections 16(2)(b), 45(2)--execution of decree against insolvent--leave of court, whether essential. - .....release to the insolvent from debts entered in the schedule. but after adjudication and before discharge, section 16 treats all creditors alike as to their remedy against the person and property of an insolvent during the pendency of the insolvency proceedings. this section in clause 2(b) absolutely prohibits execution proceedings being taken against the person and property of adjudicated insolvents except with the leave of the court, and that was the law in force at the time when the appellant was adjudicated insolvent; and under section 6 of the general clauses act, the introduction of act v of 1920, which repealed act iii of 1907, could not take away his right.4. the district judge's order is set aside and the order of the district munsif dismissing the execution application is.....
Judgment:

1. We do not agree with the opinion of the learned District Judge that the omission to take objection to the assignment of the decree being recognized and to its transmission to the Tiruvalur Court for execution, precluded the judgment-debtor from raising the question in the Executing Court that the decree was not then executable in the manner proposed by the decree-holder. The Small Cause Court at Madras did not adjudicate on the executability of the decree when it ordered it to be transmitted for execution.

2. The other distinction attempted to be made is between creditors who are en the Schedule and those who are, not.

3. At the time of an insolvent's discharge, Section 45(2) of Act 111 of 1907 gives a release to the insolvent from debts entered in the schedule. But after adjudication and before discharge, Section 16 treats all creditors alike as to their remedy against the person and property of an insolvent during the pendency of the insolvency proceedings. This Section in Clause 2(b) absolutely prohibits execution proceedings being taken against the person and property of adjudicated insolvents except with the leave of the Court, and that was the law in force at the time when the appellant was adjudicated insolvent; and under Section 6 of the General Clauses Act, the introduction of Act V of 1920, which repealed Act III of 1907, could not take away his right.

4. The District Judge's order is set aside and the order of the District Munsif dismissing the execution application is restored with costs here and in the District Court.


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