Section 28 (2) of the Provincial Insolvency Act does not bar a suit filed before an order of adjudication is made.

CHANDRA REDDY, C. J, J.

( 1 ) THIS is an appeal from the judgment of the Subordinate Judge, Amalapuram dismissing the suit brought by the appellant in forma pauperis for the recovery of Rs. 27,409 - 50 np.

( 2 ) THE material facts of the case lie in a narrow compass and may be briefly stated. The 1st defendant executed a promissory note for Rs. 21,000. 00 on 7-1-1953. He presented a petition under section 10 of the Provincial Insolvency Act in the District Court, East Godavari on 17-7-1954, That was returned to him for presentation to the proper Court which is the Subordinate Judges Court, Amalapuram. The 1st defendant accordingly represented it in the subordinate Judges court, Amalapuram and it was numbered as I. P. No. 5 of 1956. This petition was ultimately dismissed on 23-7-1958. But, on appeal carried by the aggrieved debtor, the District Court, Rajahmundry adjudged him an insolvent on and that was affirmed on further appeal by some of the creditors by this court. Meanwhile the appellant brought the suit giving rise to this appeal on 14- 2-1959 impleading the debtor as the defendant. After he was adjudged an insolvent, he added the Official Receiver as the 2nd defendant.

( 3 ) BOTH the defendants remained ex parte.

( 4 ) THE trail Court, however, dismissed the suit in the view that it was barred by limitation. While holding that the acknowledgment contained in the petition dated 16-7-1954 served to keep the debt alive he disallowed the contention of the plaintiff that the deposition of the debtor in the insolvency proceedings acknowledging the indebtedness under the suit promissory note on 3-7-1958 helped to save the debt form limitation. The subordinate Judge was not inclined to extend the provisions of Section 29 (2) read with Section 78 (2) of the Provincial Insolvency Act to this case as requested by the counsel for the plaintiff. He opined that Section 28 (2) did not govern the present case since on the date of the institution of the suit, the order of adjudication was made. In the result, he dismissed the suit. It is these conclusions of the learned Subordinate Judge that are now impugned in this appeal again in forma pauperis.

( 5 ) THE chief arguments of Sri G. Venkatrama Sastry is that since Section 28 (2) of the Provincial Insolvency Act was a bar to the filling of suits, the suit must be deemed to have been in time as the insolvency petition was presented within three years of the execution of the promissory note. This argument is sought to be supported by a judgment of the Madras High Court in Achuta Ramayya Garu v. Official Receiver, East Godavari, ILR 58 Mad 1032 : (AIR 1935 Mad 817 ). We are not persuaded that this case falls within the concept of section 28 (2) of the Provincial Insolvency Act.

( 6 ) AS the answer to this appeal turns upon the interpretation of Section 29 (2), We may profitably extract that section in so far it is of immediate relevance.

( 7 ) SECTION 28 : " (1) (2) On the making of an order of adjudication the whole of the property of the insolvent shall vest in the court or in a receiver as hereinafter Provided, and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable under this act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceedings, except with the leave of the Court on such terms as the court may impose. "

( 8 ) SECTION 28 (70 ; " An order of adjudication shall relate back to, and take effect from, the date of the presentation of the petition on which it is made. "

( 9 ) BASING himself on sub-section (7) of S. 28, Sri Venkatrama Sastry urges that the expressions " on the making of an order of adjudication" should be interpreted to mean " on the date of the presentation of the petition ". We are not impressed by this argument. It is true that sub

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