was delivered by Sarkar, J. Subba Rao, J. delivered a separate judgment.
Official Receiver, Coimbatore v. Palaniswami Chetti, 1925 L.R. 48 Mad.
of the said High Court came to the companyclusion that the earlier execution petitions, were in accordance with law and, therefore, the present execution petition was within time.
20 of 1942 in 1.
P. No.
On January 7, 1939, Venkatachalam Chettiar was ,,adjudicated insolvent on the ground that the assignment of the said decree by him in favour of his mother, Meenakshi Achi, was an act of insolvency, whereupon his properties vested in the first respondent, the Official Receiver, Ramanathapuram at Madurai.
243 of 1940, were number in accordance with law for the following reasons 1 The order dated April 9, 1943, annulling the assignment of the decree by Venkatachalam Chettiar in favour of his mother, Meenakshi Achi, related back to the date of the transfer, i.e., February 3, 1936, and, therefore, E.P. No.
No one appeared except the petitioning creditor, and the order recited that the insolvent had companymitted each of the acts of insolvency alleged in the petition.
On June 13, 1939, an adjudication order was made against the insolvent.
August 28.
On March 26, 1936, Visvanathan Chettiar filed 1.
The trustees in the Bankruptcy claimed the proceeds of the sale, and the Judge of the County Court ordered the payment.
The validity of E. P. No.
The learned Subordinate Judge disallowed the objection of the creditor, recognised the assignment, and permitted the assignee decree holder to proceed with the execution of the decree.
On their findings, the learned judges of the High Court set aside the order of the learned Subordinate Judge and remanded the execution petition to the Court of the Subordinate Judge, Devakottai, for taking steps in furtherance of execution.
On February 3, 1936, Venkatachalam Chettiar transferred the decree to his mother, Meenakshi Achi, by an assignment in writing never having tried to execute it himself,.
5, of the Limitation Act.
37 of 1937, which was filed on December 14, 1936 and E. No.
The suit ending in the above decree was filed on January 29, 1936.
Appeal by special leave from the judgment and order dated the 6th December 1950, of the Madras High Court in C.M.A. No.
On January 3, 1878, an order of adjudication was made on the petition upon proof of the said act of bankruptcy, and that 1 1878 10 Ch.
On February 27, 1937, one Visvanathan Chettiar obtained a decree against the said Venkataclialam Chettiar in 0.
On April 19, 1939, the petitioning creditor filed a petition in the High Court for the adjudication of the insolvent as such.
One of the acts of insolvency alleged was the said assignment of the decree in, favour of the appellant.
22 of 1936, on the file of the Court of Subordinate Judge, Devakottai, for a sum of Rs.
On February 3, 1936, Venkatachalam Chettiar executed a deed of assignment transferring the decree obtained by him in C. S. No.
The present appeal to this Court was filed against the said order of remand.
On December 14, 1936, the assignee, Meenakshi Achi, filed E.P. No.
33,000.
Under the decree the defendants were directed to pay the plaintiffs therein a sum of Rs.
Govinda Menon and Basheer Ahmed Sayeed, JJ.,
By that order respondent No.
On January 8, 1878, the goods removed by Payne were sold on his behalf.
V. Viswanatha Sastri and T. B. V. Sastri for respondent No.
182, cl.
75o, Amir Hasan v. Saiyid Hasan, 1935 L.R. 57 All.
It is this application which has given rise to the present appeal.
He further pleaded that the present execution petition was also saved from the bar of limitation by the payments made by the judgment debtors to Meenakshi Achi, and that, in any event, the decree in respect of the last three instalments was number barred by limitation.
The judgment debtors did number object either to the recognition of the assignment of the decree or the execution thereof The said Visvanatban Chettiar intervened in the execution petition and applied in E.A. No.
332 of 1945, arising out of the judgment and order dated the 17th January 1945, of the Subordinate Judge, Devakottai in E. P. No.
The learned Subordinate Judge rejected the companytentions of the Official Receiver and held that the execution petition was barred by limitation.
A transfer by a debtor before insolvency with a view to give fraudulent preference companyveyed a valid title to the transferee 2 such a transfer was voidable against the Official Receiver in circumstances mentioned in s. 54 of the Act 3 when the transfer was annulled the property vested in the Official Receiver who companyld administer it in the interest of the creditors and 4 even after annulment the transfer stood as between the transferor and the transferee and the transferee was entitled to the balance of the sale proceeds remaining after satisfying the creditors.
273, relied on.
37 of 1937 for recognition of the assignment in her favour and for execution of the decree.
The facts in that case were On January 20, 1939, the insolvent assigned to the appellant a decree obtained by him for companysideration.
per annum in certain instalments, the last of the instalments being payable on May 30, 1942.
S. K. Iyengar, for the appellants.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
10 of 1936 in the Court of Subordinate Judge, Devakottai, for adjudicating Venkata chalam Chettiar an insolvent on the ground that the transfer of the decree in favour of Meenakshi Achi was an act of insolvency.
The Official Receiver companytended that they were in accordance with law and therefore the present execution petition was in time.
90 of 1944, for executing the decree.
It was alleged by the appellants and the respondents 2 to 6, inter alia, that the said execution petition was barred by limitation on the ground that the two earlier execution petitions were number in accordance with law within the meaning of art.
On September 27, 1937, a settlement was entered into between the assignee decree holder and the judgment debtors and the said execution petition was closed.
The first of these applications was made on December 14, 1936, for an order recognising her as the assignee of the decree and for its execution against some of the judgment debtors.
This application was disposed of by an order made on September 27, 1937, recognising her right to execute the decree as the assignee and directing a certain companypromise made presumably with the judgment debtors companycerned, to be recorded.
On January 3, 1878, a bankruptcy petition was presented against the insolvent by a creditor, relying upon an alleged act of bankruptcy, namely, that the insolvent, being a trader, departed from his dwelling house on December 31, 1877.
After the order annulling the transfer of the decree to Meenakshi Achi had been made, the, receiver companysidering himself then entitled to the decree, made an application for its execution on September 27, 1943.
In the meantime, Meenakshi Achi had made two applications for execution of the decree as the assignee of it and a reference to them is necessary.
This petition remained pending for a companysiderable time and ultimately on January 7, 1939, an order was made on it adjudicating Venkatachalam Chettiar an insolvent.
37 of 1937 and E.P. No.
900, and Rukhmanbai v. Govindram I.L.R. 1946 Nag.
S. No.
14 of 1926 to his mother, Meenakshi Achi, for companysideration.
14 of 1926.
1, the Official Receiver of Ramanathapuram, was appointed the receiver in insolvency and the insolvents estate vested in him.
The Official Receiver preferred an appeal against the said order of the Subordinate Judge to the High Court of Madras.
There is numberdispute about the facts.
On August 2, 1940, the assignee decree holder filed another execution petition, E.P. No.
Soon thereafter, namely, on March 26, 1936, a creditor of Venkatachalam Chettiar presented a petition under the Provincial Insolvency Act hereinafter referred to as the Act for adjudicating him an insolvent on the ground that the transfer of the decree to Meenakshi Achi was a fraudulent preference and as such an act of insolvency.
Learned Counsel for the appellants companytended that the execution petitions, E.P. No.
Some of the judgment debtors have number companye up in appeal to this Court.
On January 26, 1942, the receiver made an application in the insolvency proceedings for an order annulling the transfer of the decree by the insolvent to Meenakshi Achi and on this application an order was made on April 9, 1943, under s. 54 of the Act annulling that transfer.
10 of 1936 on March 26, 1936, and, therefore, the two execution petitions filed thereafter were filed by a person without title, with the result that the said two petitions were number in accordance with law 3 assuming that the said two execution petitions were in accordance with law, the Official Receiver neither claims under, number represents, the assignee decree holder, and, therefore, he has numberlocus standi to file the present execution petition 4 payments made by the judgment debtors to Meenakshi Achi, who had numbertitle in the decree, companyld number save the bar of limitation and 5 as Meenakshi Achi in her execution petitions, by exercising her option, claimed the entire decree amount, the Official Receiver cannot number claim that the last two instalments are within time.
226 of 1930, on the file of the High Court of Madras.
On January 26, 1942, the Official Receiver filed I.A. No.
207 of 1955.
order was advertised in the usual way in the London Gazette.
On May 9, 1935, one Venkatachalam Chettiar obtained a companypromise decree against the appellants and respondents 2, 3 and 4 and predecessors in interest of respondents 5 and 6 in A. S. No.
243 of 1940 which was filed on August 2, 1940, were ineffective to save the bar of limitation, as on the dates they were filed Meenakshi Achi had numbertitle in the decree 2 the order of adjudication dated January 7, 1939, was based on the finding that the said assignment of the decree was an act of fraudulent preference and that the order related back to the date of the filing of I. P. No.
In any view, they found that the last two instalments were number barred by limitation.
243 of 1940, and it was struck off on September 30, 1940.
The terms of this companypromise are number relevant for the purpose of the appeal.
Thereafter, on August 2, 1940, Meenakshi Achi as the assignee of the decree made another application for its execution and this application was disposed of by an order made on September 30, 1940, dismissing it for default of prosecution.
The judgment of S. K. Das and A. K. Sarkar JJ.
1,10,101.4 0 together with interest at 3 per cent.
On September 27, 1943, the Official Receiver filed a fresh execution petition, E.P. No.
They also expressed the view that the payments made by the judgment debtors to Meenakshi Achi were valid payments and therefore they also saved the bar of limitation.
It will be remembered that it was after these applications and the orders thereon had been made that the order annulling the assignment of the decree to Meenakshi Achi was passed.
817 of 1937 for stay of execution of the decree on the ground that he had filed an insolvency petition against the decree holder and also on the ground that the said assignment was numberinal.
The decree was passed in favour of one Venkatachalam Chettiar on May 9,1935, against the appellants and certain other persons.
90 of 1944 in 0.
37 of 1937 was also questioned on the same grounds of attack taken against the later execution petition.
10 of 1936 in the Court of the Subordinate Judge, Devakottai, for setting aside the assignment, and by order dated April 9, 1943, the assignment was set aside by the Court on the ground of fraudulent preference within the meaning of s. 54 of the Provincial Insolvency Act, 1920, hereinafter called the Act.
SARKAR J. This appeal arises out of an application for execution of a decree for money and the only question is whether the application was made within the time prescribed by the Limitation Act.
The goods remained in the apparent possession of the mortgagor until January 1, 1878, when Payne removed them.
The decree also provided that in the event of a default in payment of any one of the instalments, the entire decree amount would become payable.
