Judgement

Appeal (No. 23 of 1941) from an order of the High Court (November 11, 1938) which affirmed an order of the Additional District Judge, Raipur (August 20, 1935).

The following facts are taken from the judgment of the Judicial Committee. This appeal arose out of an execution proceeding, and the question for determination was whether the. application made by the decree-holder, the present respondent, for the execution of a decree which he had obtained against the appellants—the judgment-debtors—was barred by time. The District Judge and, on appeal, the High Court (Stone C.J. and Bose J.) held that it was not barred. The material facts were as follows One Madanlal Sao, the father of the respondent, obtained a decree against the appellants on February 1, 1932, in the Court of the Additional District Judge, Raipur, for Rs.32,185-5-3 with interest and costs. Before judgment, he had the immovable properties of the appellants attached under the Code of Civil Procedure. On June 27, 1932, which was within the period of three years prescribed by the Indian Limitation Act, Madanlal Sao applied for execution of his decree by the sale of the villages which had already been attached. On July 5 the court registered the application, making the following order "Application is corrected. It is reported to be correct. It "be registered. In this case the judgment-debtors seven "villages have been attached by the decree-holder before "judgment, and he prays for the issue of C form to the "collector. The decree-holder should file copies of mutation "registers and decrees by August 13, 1932, and C form be "prepared and put up on August 20, 1932." The order to obtain copies of the mutation registers was apparently passed under Or. xxi., r. 14, Civil Procedure Code, which provides that " Where an application is made for the attachment "of any land which is registered in the office of the collector, "the court may require the applicant to produce a certified "extract from the register of such office, specifying the persons "registered as proprietors of, or as possessing any transferable "interest in, the land, or its revenue, or as liable to pay revenue "for the land, and the shares of the registered proprietors.”

The time for filing those copies was extended from time to time till November 5, 1932, when the court passed the following order " Decree-holder absent. Time 4.8 p.m. No copies "filed as it is understood that the judgment-debtors have "been adjudged insolvent. Dismissed for default." While the execution was pending, on July 5, 1932, the Additional Subordinate Judge, Raipur, adjudged the appellants insolvents. On August 19, 1932, Madanlal, the decree-holder, put in a claim in the Insolvency Court supported by an affidavit giving the particulars of his debt as required by s. 49 of the Provincial Insolvency Act, which is as follows Sect. 49, sub-s. 1 " A debt may be proved under this Act by delivering, "or sending by post in a registered letter, to the court an "affidavit verifying the debt." Sub-s.

2 "The affidavit "shall contain or refer to a statement of account showing the "particulars of the debt, and shall specify the vouchers (if any) "by which the same can be substantiated. The court may "at any time call for the production of the vouchers."

On August 20, a list of debts was prepared, in which Madanlals name was entered as a creditor. On September 10, 1932, the Additional Subordinate Judge passed the following order ". . . . No other debts have been proved. HagiWalli "Mohamad, Madanlal Sao, Ambalal Ranchason and Kampta "Prasad are suspended from the Schedule, since the receiver "alleges that they are not fully binding on him; they must "therefore prove on what grounds they got their decrees." On February 28, 1934, the adjudication of the insolvents was set aside by the Appellate Court. On July 23, 1935, the decree-holder, who had since died and was now represented by his son, the respondent, presented the second application for th