(This petition coming on for hearing on Friday the 17th day of November 1933, the Court (Anantakrishna Ayyar, J.) made the following.)

Order of Reference to a Bench.

Ananthakrishna Iyer, J.

The application filed by the decree-bolder oa 17th March 1932, for execution of the decree in S.C.S. No. 234 of 1932, has-been dismissed by the learned District Munsif on the ground that execution of the decree is barred by limitation. The learned District Munsif held that E.P. No. 173 of 1930, should not be taken to be a step in aid of execution, because the defendant was an undischarged insolvent at that time. In this revision petition filed by the decree-holder, it is argued that there was Article I.A. No. 424 of 1930 filed by the decree-holder on 23rd July 1933, for leave to execute the decree against the defendant under Section 28(2), Provincial Insolveney Act, and that leave was granted to the decree-holder on 26th August 1930. It is argued by the petitioner decree-bolder that assuming that E.P. No. 173 of 1930 would not be available, as the starting point for limitation yet;,, as I.A. No. 424 of 1930 was filed within three years of final orders passed on 5th January 1928, in the previous I.A. No. 210 of 1927, the present application was not barred as it was filed within three-years from the order passed on I.A. No. 424 of 1930. As the respondent is unrepresented, the learned advocate for the petitioner very properly (and I am obliged to him for that) drew my attention to the fact that in Kuppuswami Chettiar v. Rajagopala Aiyar A.I.R. 1922 Mad 79, [LQ/MadHC/1921/268] it was decided by a Bench of this Court that an application to be a step-in-aid of execution should be made in a pending execution application. Ramesam, J. s view to the contrary in Sankara Nainar v. Thangamma A.I.R. 1922 Mad. 247, [LQ/MadHC/1921/60] was dissented from by the learned Judges in Kuppuswami Chettiar v. Rajagopala Ayyar A.I.R. 1922 Mad

79. In Krishna Pattar v. Seetharama Pattar A.I.R. 1928 Mad. 1178 however the learned Judges seem to be inclined to hesitate to accept the view indicated in Kuppuswami Chettiar v. Rajagopala Ayyar A.I.R. 1922 Mad 79 [LQ/MadHC/1921/268] and remarked that if they really had to decide the question they should hesitate to accept that decision without further consideration of the matter in the light of the decided cases in our Court which have not been referred to in the decision in Kuppuswami Chettiar v. Rajagopala Ayyar A.I.R. 1922 Mad

79. The learned Judges were however able to dispose of the matter before them in Krishna Pattar v. Seetharama Pattar A.I.R. 1928 Mad. 1178. Having regard to the observations at p. 54 (of 50 Mad.) referred to above, I refer this civil revision petition to a Bench for disposal. At the request of the learned Counsel for the petitioner, and seeing that 12 years from the date of the decree would expire in a few months, this civil revision petition will be posted before a Bench nest week.

Judgment: The petitioner in this case obtained a decree in Small Cause Suit No. 234 of 1932 on the file of the District Munsif s Court, Calicut. The decree was subsequently transferred for execution to the Court of the District Munsif, Vayitri. An execution petition, E.P. No. 1480 of 1932 dated 17th March 1932, was put in and was dismissed on the ground that it was barred by limitation. This revision petition has been preferred against that order. It came before Anantakrisbna Ayyar, J., and on account of a difference in opinion between the view taken in Sankara Nainar v. Thangamma A.I.R. 1922 Mad. 247 [LQ/MadHC/1921/60] "that an application to be a step-in-aid of execution need not be made in a pending execution application" and a doubt thrown upon that view in Krishna Pat. tar v. Seetharama Pattar A.I.R. 1928 Mad. 1178, he referred the matter to a Bench.

It is necessary to state some further faots. It is not disputed that up till the date when E.P. 210 of 1927 dated 12th November 1927, was filed in the Court of the District Munsif, Vayitri, execution proceedings had been kept alive. That petition was dismissed on 5th January 1928, because the judgment-debtor bad applied to be adjudged an insolvent. The exact date of the insolvency does not appear on the records before us but as it was registered as I.P. No. 2 of 1927, it must have been some time between 12th November 1927 and the close of that year. On 18th June 1930 the petitioner put in E.P. No. 173 of 1930 to arrest the judgment-debtor. That petition was ultimately dismissed on 26th August 1930, on the ground that no leave of the insolvency Court had been obtained under Section 28, Clause 2, Provincial Insolvency Act. Meanwhile on 23rd July 1930, the petitioner applied to the insolvency Court by I.A. No. 424 of 1930 for permission to execute his decree. Leave was granted on 26th August 1920. This was also the date on which E.P. No. 173 of 1930 was dismissed. The next execution petition put in was the present one, E.P. 1480 of 1932 on 17th March 193

2. That part of the petition which shows the previous steps taken is somewhat involved and obscure and on one point it is clearly incorrect. The material portion so far as it concerns the matter before us is as follows;

"Afterwards execution of the decree was applied for in E.P. No. 210 of 1927 and the decree was sent to the District Munsiff s Court of Vayitri at Calicut. Under the orders of the said Court on E.P. No. 173 of 1930, the defendant was arrested and produced before the Court. The surity produced the security bond and caused the defendants to put in I.P. No. 2 of 1927. As discharge was not applied for afterwards the insolvency petition was dismissed."

Now it is quite dear that it was not on the petition E.P. No. 173 of 1930, that the defendant put in his I.P. as this is correctly enough described even in the application as being I.P. No. 2 of 1927. In the counter the plea of limitation was taken and it is clear both from the petition itself and from the counter, as well as from the way in which the matter was argued before the learned District Munsif that it was E.P. No. 173 of 1930 which was relied to save limitation. The learned District Munsif had dismissed that execution petition as noted above on 26th August 1930 following a Bench decision of this Court to which one of us was a party., Ghouse Khan v. Subba Rowther A.I.R. 1927 Mad. 925, [LQ/MadHC/1927/204] viz., that the petition was not in accordance with law as leave of the insolvency Court has not been obtained. He held that prior leave must be obtained to institute a suit during the pendency of the insolvency proceedings and that failure to do so cannot afterwards be cured. On this latter point he followed Langbu Pande v. Baijnath Saran Pande (1906) 28 All. 387. In the revision petition before Ananthakrisbna Ayyar, J., what was relied on was I.A. No. 424 of 1930, which petition does not at all appear to have been relied on before the lower Court, and was not even mentioned in the discussion of the previous proceedings in para. 6 of the present execution petition. It was on account of the difference in view between Sancara Nainar v. Thangamma A.I.R. 1922 Mad. 247 [LQ/MadHC/1921/60] and Krishna Pattar v. Seetharama Pattar A.I.R. 1928 Mad. 1178 as it affected I.A. No. 424 of 1930, that Anantakrishna Ayyar, J., referred the matter to a Bench. Before us a third ground has been taken to save limitation, namely, that the petition E.P. No. 210 of 1927 was suspended in its operation from 5th January 1928 till 26th August 1930 when leave was obtained by the operation of Section 28, Provincial Insolvency Act. Whether that ground was at all urged before Ananthakrishna Ayyar, J., we do not know. It is not mentioned in his order of reference but it is of course possible that, having decided to refer the matter to a Bench in so far as it affected the plea of the saving of limitation of I.A. 424 of 30, he has not thought it necessary to discuss a plea based on E.P. No. 210.

There are therefore three questions before us : (1) whether the view taken by the learned District Munsif that E.P. No. 173 of 30 could not be relied on because being in its inception illegal that defect could not subsequently be cured by the leave granted by the Court is correct; (2) whether I.A. No. 424 of 30 will save limitation; and (3) whether the effect of Section 78(2), Provincial Insolvency Act, will enable the petitioner to rely upon E.P. No. 210 of 1927 to exclude the period from 5th January 1928 to 26th August 1930.

On the first point there is no decision of this Court either before or after dissenting from the Bench decision in Ghouse Khan v. Subba Rowther A.I.R. 1927 Mad. 925, [LQ/MadHC/1927/204] which decision followed In re Dwarkadas Tejbhandas A.I.R. 1915 Bom. 134. The only decision of any Court quoted to the contrary is another Bombay decision reported in Bhimaji v. Chunilal A.I.R. 1932 Bom. 344 [LQ/BomHC/1931/114] . This is a decision by a single Judge which mentions Ghouse Khan v. Subba Rowther A.I.R. 1927 Mad. 925 [LQ/MadHC/1927/204] but does not discuss it. Assuming that the actual point in question was here decided, and this is not quite dear, we cannot certainly interfere in revision with the correctness of a decision based upon a Bench decision of this Court.

Next comes the question of I.A. No. 424 of 30 which is the matter referred to us, but for reasons to be given we think it unnecessary to canvass the question whether such an application must be made in a pending execution petition. We may say however that the balance of decisions in this Court certainly appears to confirm the correctness of the view taken in Sankara Nainar v. Thangamma A.I.R. 1922 Mad. 247 [LQ/MadHC/1921/60] . This was not only that of Ramesam, J., in that case (though for some reason in subsequent oases it is only his dictum that was referred to) but also that of Spencer, J., in the same case. Kunhi v. Seshagiri (1882) 5 Mad. 141, Annamalai Mudaliar v. Ramier (1908) 31 Mad. 234 and Kannan v. Avvulu Haji A.I.R. 1927 Mad. 288, [LQ/MadHC/1926/384] upheld the view that there need nob be any execution petition pending, and in Krishna Pattar v. Seetharama Pattar A.I.R. 1928 Mad. 1178 the matter was not quite essential for the determination of this case. The reason why we consider it unnecessary to canvass the question actually referred to us further is that looking at the explanation at the end of Col. 3, Article 182, Lim. Act, which states "proper Court" means the Court whose duty it is to execute the decree or order, we are clear that I.A. 424 of 30, which was made to the insolvency Court, was not an application made to the proper Court and hence this application cannot be invoked at all under Article 182, Lim. Act, to save limitation. As against this view the learned Advocate for the petitioner (the counter petitioner is unfortunately not represented before us) argues that under Section 5, Provincial Insolvency Act, the Insolvency Court is not a distinct Court but that insolvency is merely a branch of the jurisdiction which it exercises in its ordinary capacity as some other sort of Court. Reliance is placed by him on the expression in Section 5, Provincial Insolvency Act:

The Court in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction.

It is further pointed out by him that while Section 33, Provincial Small Cause Courts Act, specifically lays down that

"A Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, shall for the purposes of this Act and the Code of Civil Procedure, be deemed to be different Courts;

there is no such provision in the Provincial Insolvency Act. Two oases in support of this view are quoted. Laxmiram Lallubhai v. Balashankar Veniram A.I.R. 1914 Bom. 247 [LQ/BomHC/1914/50] is a Bench decision which held that " an application by a mortgagee judgment-debtor in execution of his decree, opposing the insolvency proceedings of the mortgagor-judgment-debtor, is a step in aid of execution under Article 179, Schedule 2, Lim. Act (15 of 1877) and Article 182, Schedule 1, Lim. Act (9 of 1908)."

But the explanation to Section 182 which defines what is the "proper Court" is not at all alluded to in the judgment and this omission is pointed out by Rustomji in his Commentary on the Act. The other decision is the one reported in Baldeo Singh v. Ram Sarup A.I.R. 1921 All. 174 [LQ/AllHC/1921/259] . Here also the explanation of the proper Court given in Section 182 is not at all referred to. Moreover in that case this was only one of the two grounds on which the bar of limitation was held to be avoided, and the other ground appears to have been unassailable namely that the executing Court itself stopped the transmission of the decree to the Collector till judgment in the suit instituted to set aside the order on the claim petition had been received. Consequently this stay, which the petitioner could not avoid, was held to save limitation. The Bombay High Court has itself held in Govinddas Rajaramdas v. Ganpatdas Narotamdas A.I.R. 1923 Bom. 431, [LQ/BomHC/1923/101] following Nand Kishore v. Sipahi Singh (1904) 26 All. 608, that even an appeal against an order in execution is no application to the proper Court under Section 182 because the appellate Court is not the executing Court. That is a very much stronger case than where the application is to an insolvency Court. In Raghu Nandan Prasad v. Rhugoo Lall (1890) 17 Cal. 268 it was held that a suit against a claim petition was not an application under Article 182 and consequently would not save limitation. It seems to us to be clear that the insolvency Court which is entirely a creature of the Provincial Insolvency Act is a diff0erent Court from the Court which is to execute a decree obtained independently of the Insolvency Act, and that the mere fact that the Judge is the same person will not make the two Courts the same. The learned advocate for the petitioner conceded before us that had the decree in this case been transmitted to some other Court for execution, then the insolvency Court before which I.A. 424 of 30 was filed would not have been the same Court whose duty it was to execute the decree, and it can hardly be that the mere accident that the decree was or was not transferred could affect the question whether the insolvency Court before which the I.A. must in any case have been made was the "proper Court" within the meaning of Article 18

2. We must therefore hold that I.A. 424 of 30 was not made to the proper Court within the meaning of the explanation to Article 182, Lim. Act, and is not therefore available to save limitation.

The third point which has been argued before us resting on E.P. 210 of 27 by invoking Section 78(2), Provincial Insolvency Act, has now got to be considered. Section 9, Lim. Act, states that "when once time has begun to run no subsequent disability or inability to sue stops," the sole exception being in the matter of Letters of Administration where the running of the time prescribed for a suit to recover the debt shall be suspended while the administration coutinues. The effect of the grant of permission under Section 78(2), of the Insolvency Act with regard to limitation was considered in Ramaswami Pillai v. Govindaswami Naicker A.I.R. 1919 Mad. 656. The learned Judges there held:

"s we read Section 16(2), (corresponding to Section 28(2) of the new Act) of the Provincial Insolvency Act, what the order of the adjudication effects is not an absolute stay, but a direction that before a suit is brought, a condition precedent should be complied with, namely, the obtaining of leave to sue from the Court. In our opinion Section 15 Lim. Act, does not operate to save limitation in cases where the suit could have been instituted on complying with a preliminary requisite in that behalf."

This decision was passed prior to the Provincial Insolvency Act 5 of 1920 and Section 78(2) is new so that the effect of that section did not arise for consideration. In that case the adjudication had been annulled and probably under those circumstances the decision might have been different had the matter been decided under the new Act. Nevertheless the reasonings are still worthy of consideration. As regards the oases decided after the new Act in Sita Ram v. Kishan Lal (AIR. 1930 All. 580) [LQ/AllHC/1930/60] , it was held that though Section 78(2) did not apply to that case as the debt was not proved nevertheless some force must be given to the proviso to Section 3

1. That was a case where an application for arrest was made shortly after the cessation of the protection order which had been passed, and it was held that if the application was made promptly after the cessation of the protection order the applicant would be entitled to the exclusion of the period during which the protection order was in force. In another case Mulchand v. Rajdhar A.I.R. 1925 All. 735 permission had been granted under Section 28(2) but it was found to have been impossible to act. It was held

"tat such permission was ineffectual to exclude the unfettered operation of Section 78 and that the period between the adjudication and annulment should be deducted from the period allowed for limitation."

In Ramaswami Chetty v. Palaniappa Chetty A.I.R. 19

3

3. Mad. 675 the application was one to execute a decree in favour of the insolvent and it was held that Section 78(2) had no application to such cases. There are remarks in that case which go to show that Section 78(2) imposes a limitation on Section 9, Lim. Act. Now it is by no means clear in the present case that there has been any annulment of the adjudication order and if there had been a clear annulment it is very remarkable that the provision in Section 78(2) should not have been relied on at all in the lower Court, nor so far as we can see even before our learned-brother Ananthakrishna Ayyar, J, It was the duty of the petitioner to state clearly in his petition the ground on which he relied to save the bar of limitation. It is obvious, on a mere comparison of the dates we have quoted, what was the bar of limitation which he had to meet and it is quite clear that he relied on E.P. No. 173 of 30 and on nothing else for that purpose. The learned District Munsif remarks in his order on I.A. 424:

"The respondent was adjudged insolvent in 1928 and was given six months time to apply for discharge. He has not applied for discharge. He now says that he intends to apply for art extension of time for applying for discharge. He has admittedly not applied for any extension till now. I do not see sufficient ground therefore for not allowing the petition. Leave prayed for is therefore granted."

So it is clear that the failure to apply for discharge was brought to the Court s notice, and yet it passed no orders annulling the adjudication or dismissing : the insolvency petition. It apparently should have done so and the position would have been much simpler bad it annulled the adjudication, but it merely gave leave to the petitioner to execute his decree. Even in arguing the case before us no reference was made to the allegation in the E.P. that the insolvency petition had been dismissed nor was it even asserted in this petition that the adjudication had been annulled. On our noticing the allegation in the E.P. that the insolvency petition had been dismissed we asked the learned advocate for the petitioner whether this was so and he was not able to inform us definitely on the point.

In these circumstances, and especially when Section 78(2) was not relied upon before the lower Court as a ground for saving limitation we are not prepared in revision to interfere especially by what will be an ex parte order, based on a somewhat difficult question of law when the most important fact Which would justify such interference, viz., that the adjudication had been actually annulled is not established. It is quite a debatable point whether Section 78(2) will or will cot apply when the adjudication has not been annulled bat leave is merely granted to a particular person to proceed with his remedy in the ordinary Court. Had the matter been raised and discussed before the learned District Munsif, and had he given a decision either for or against the petitioner based on Section 78(2), Provincial Insolvency Act, the position would have been very different, but we feel that at this stage it would be unsafe and unwise for us to interfere in revision when we are not in possession of the actual facts on which this plea in bar of limitation is sought to be raised.

In the result therefore we are not prepared on any of the three grounds alleged before us to interfere in revision with the findings of the lower Court. The revision petition is there, fore dismissed but with no costs as there is no appearance of the counter petitioner.