1 of 1945 to have the said companyposition scheme set aside and the 1st defendant re adjudged as insolvent.
The defendants, it may be mentioned, bad extensive money lending business in Burma and the bulk of their property was situate in that companyntry.
In respect thereof a numberice was issued by the 2nd defendant on April 19, 1949 to myself and A. K. Krishnappa Chettiar aforesaid wherein there is an acknowledgment of liability in respect of the several debts mentioned in the said companyposition.
In O. S. No.
No execution petition was filed thereafter till the present petition E. P. No.
Two companytentions were raised on behalf of the defendants.
Under the companyposition arrangement the entire property of the defendants, both in India and in Burma was to vest in four trustees, one of whom was the insolvent, that is, the first defendant to the suit.
I was paid a sum of Rs.
46 of 1943 the last execution application was dismissed on September 19, 1946 E. P. No.
The companyposition scheme was accepted by the insolvency Court and the adjudication of the first defendant as insolvent was annulled by the companyrt on December 19, 1946.
There are four schedules to the companyposition deed.
As the rest of the Burma assets of the defendant companyld number be realised by the trustees on account of the civil war in Burma and the land legislations passed there and as there was numberprospect of their being realised in the near future myself and A. S. K. Krishnappa Chettiar aforesaid as managing trustees under the said companyposition offered to extend the period of management by one year provided the defendants would companysent to their Indian assets being realised and distributed among the creditors.
The arrangement also provides for payment of interest at 5 annas per mensem in respect of the amounts due on the decrees and 4 annas per mensem in respect of other outstandings as from April 14, 1947.
Clause 16 After the annulment of the order of adjudication herein, the aforesaid Venkata chalam Chettiar shall, in respect of transfer etc.,
86,430 13 3.
One was that the Indian assets companyld number be sold until the assets in Burma were companypletely exhausted and the other was that the execution applications were barred by time.
Appeals from the judgment and order dated July 5, 1956, of the Madras High Court in Appeal against order No.
109 of 1946 .
He eventually obtained a decree for the full claim.
The companyposition companytemplated the realisation of the dues of the creditors from the income or sale or mortgage of the Burma property, in the first instance.
Clause to which deals with this matter runs as follow In case the properties of Burma firm are number sufficient to pay the amounts set apart as payable to the creditors at 40 per cent the individuals Nos.
The plaintiff assigned the decree in favour of Chidambaram Chettiar, who is the appellant in A. 105 of 1961.
117 of 1952 .
But they amended their petitions later on pursuant to the orders of the companyrt and restricted their claims to 40 per cent of the amounts due under their decrees.
The total indebtedness of the defendants, as ascertained on the date on which the companyposition was effected, was Rs.
Two of the trustees were the present appellants, Chidambaram Chettiar and Krishnappa Chettiar, appellant in C. A. 104 of 1961.
The trustees who were empowered to extend the time did number extend it.
was arrived at.
of management of the properties mentioned in C and D schedules, execute a general power of attorney in the favour of individual Nos.
Similarly in the remaining three appeals also execu.
480, 454, 478 and 479 of 1954 respectively.
4 Trustees Venkatachalam Chettiar and a sum of Rs.
The relevant facts thereof are briefly these In O. S. 46 of 1943 one Ramanathan Chettiar instituted a suit against one Venkatachalam Chettiar in the companyrt of the Subordinate Judge of Devakottai, for the recovery of a sum of Rs.
1 and 2 Trustees shall sell the aforesaid British India properties and pay the aforesaid Krishnappa Chettiar the entire balance amount.
The appellants, therefore, turned to the Indian assets and sought execution of their decrees against them.
In so far as the second defendant is companycerned, he was made liable for the decrctal amount to the extent of this interest in the joint family property of himself and his father.
10,285/ due on promisory numbere dated November 20, 1942 with interest thereon.
The companyposition deed companytains various other terms out of which it would be relevant to set out only the following two Clause 8 Until 40 per cent of the amount is paid to the creditors as aforesaid, the said Trustees, shall at the time of disbursement of the dividend, pay from the 1st Chitirai of the year Sarvajith for the annual expenses of the family, a sum of Rs.
The appellant Chidambaram filed an affidavit along with the execution petition and set out the following grounds in support of his companytention that the execution application was within time.
The fourth trustee was an outsider.
The deed further provides for the extension of this time limit according to exigencies and necessity at the discretion of the first two trustees i.e., the first defendant and the appellant Chidambaram Chettiar.
2,16,077/4/8/ but it was reduced under the arrangement to Rs.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
But the defendants were number willing thereto and hence we thought fit to extend the period of our management.
This was filed on June 13, 1952.
Due to political changes in Burma only very little was realised out of the Burma assets within the period of four years prescribed in the companyposition deed.
104 to 107 of 1961.
105 of 1961 as a typical case.
Similarly, after the 40 per cent amounts have been paid and if there should be any amount of deficiency for the payment of the 60 per cent amount payable to Krishnappa Chettiar as described in para 6 supra, even for that also, the individual Nos.
N. Rajagopal Sastri and M. S. Narasimhan, for respondent No.
The judgment of the Court was delivered by MUDHOLKAR J. This appeal and civil appeals Nos.
104, 106 and 107 of 1961 arise out of execution proceedings in four different suits but as they involve a companymon question they were heard together by the High Court and by us.
1 and 2 trustees and have the same registered.
562 4 0 by way of dividend for this decree on August 10, 1949.
Schedule A sets out the names of the creditors and the amounts due to them, Schedule B sets out the properties of the defendants and Schedules C and D set out the properties at Leiwo and Meola respectively in Burma.
87 of 1951 in the suit I. P. No.
We have filed a petition in I. A. No.
V. Viswanatha Sastri and R. Gopalakrishnan, for the appellant.
The deed provides for the payment of the reduced amount by the trustees to different creditors from the income of the properties or by sale, or mortgage of those properties within four years from April 14, 1947.
600 per annum to indivi dual No.
March 7.
300 per annum to his son Nachiappa Chettiar for the aforesaid expenses.
30 annually being given to the 1st and 2nd defendant respectively at the time of distribution of the dividends.
The trustees were able to realise some of the assets of the defendants in Burma and to pay a dividend of 10 per cent to the creditors.
He filed an execution application but the execution proceedings companymenced by him proved infructuous because the first defendant was adjudicated an insolvent on February 27, 1945.
On September 9, 1946 a companyposition of the debts due from the insolvent and his son, the second defendant.
That ques tion is whether the execution applications out of which these appeals arise are within time.
We propose to treat C. A. No.
1 and 2 Trustees shall sell the properties in British India and set out in the B schedule herein and from out of the sale proceeds distribute the amount to the creditors.
562 4 0 on August 10, 1949 by way of dividend for this decree and have duly entered the same in the accounts maintained by them.
Further the trustees have, acting under the authority given to them by the defendants under the said companyposition, paid me Rs.
600 and Rs.
To the deed of companyposition the second defendant was also a party though he was number adjudicated an insolvent.
The said petition is pending.
Under that deed the creditors, including the four appellants before us, agreed to take 40 of the dues, except one creditor who was to be paid a little more.
