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Krishna Chandra Das Vs. Jotindra Nath Porial and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1929Cal159a,114Ind.Cas.415
AppellantKrishna Chandra Das
RespondentJotindra Nath Porial and anr.
Excerpt:
- .....the application for execution is barred by limitation. both the courts below have held that the decree-holder is entitled to exclude the time during which the insolvency proceedings were pending, that is between the period of 9th april 1924 when the judgment-debtor was adjudicated an insolvent and the 27th august 1925 when the adjudication was annulled. during the course of the execution of the decree the judgment debtor applied for being adjudicated an insolvent. he entered in his schedule the decree-holder as the only person who was his creditor, and apparently he stated that the decree-holder had obtained the decree. upon that the executing court stayed the execution and it appears that the court directed the decree-holder to produce a copy of the insolvency proceedings. the.....
Judgment:

1. In this case the question is whether the application for execution is barred by limitation. Both the Courts below have held that the decree-holder is entitled to exclude the time during which the insolvency proceedings were pending, that is between the period of 9th April 1924 when the judgment-debtor was adjudicated an insolvent and the 27th August 1925 when the adjudication was annulled. During the course of the execution of the decree the judgment debtor applied for being adjudicated an insolvent. He entered in his schedule the decree-holder as the only person who was his creditor, and apparently he stated that the decree-holder had obtained the decree. Upon that the executing Court stayed the execution and it appears that the Court directed the decree-holder to produce a copy of the insolvency proceedings. The decree-holder apparently failed to produce a copy of the insolvency proceeding within the time allowed and the execution case was thereupon struck off. Now the judgment-debtor says that Section 78 does not apply because the debt was provable under the Insolvency Act but was not proved under the Act, and reference is made by his advocate to Section 33, Provincial Insolvency Act, under which he says that the creditor was bound to prove his debt again. Reference has also been made to Section 49 as to the mode of proof of the debt. In this case the insolvent admitted the debt of the creditor decree-holder. Section 49 only specifies a simple mode of proof of the debt, and I agree with the observation of the learned Munsiff in this case which has been affirmed by the learned Judge that Section 49 does not exclude any other mode of proof. In this case the debt to the decree-holder was proved in the insolvency proceedings according to the statement of the insolvent that he had obtained a decree against the insolvent ; therefore he was on the facts of this case entitled to exclude the period under Section 78 of the Act. This appeal is therefore dismissed with costs. We assess the hearing fee at three gold mohurs.


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