JUDGMENT - S.P. BHARUCHA, J.:---By the judgment and order under appeal the appellants were adjudicated insolvent upon the petition filed by the 1st respondents.

2. The 1st respondents had filed a suit being O.O.C.J. Suit No. 1313 of 1975 against a private limited company called Mona Traders Private Ltd. and the appellants, who were its directors. On 4th March, 1976 the 1st respondents obtained an ex-parte decree. Thereunder the limited company was ordered and decreed to pay to the 1st respondents the sum of Rs. 17,94,156.68 and interest thereon as therein stated; and the appellants were ordered and decreed to pay to the 1st respondents slightly smaller sums with interest thereon as therein stated. The decree also required that the goods hypothecated to the 1st respondents be sold and the net sale proceeds applied for satisfaction of the 1st respondents' claim. The sale was to be effected by the Commissioner for Taking Accounts. It was also ordered that the decrees passed against the appellants were not separate decrees and that they would be entitled to credit for any money paid by the limited company in respect of the decree passed against it as also by reason of the date of the hypothecated goods. Partial satisfcation of the decree was noted on 18th July, 1985 in the sum of Rs. 4,785/-, paid by the Official Liquidator after selling the moveable property of the limited company.

3. On 15th October, 1985 the 1st respondents issued a notice under Order XXI, Rule 22 of the Code of Civil Procedure for execution of the decree and the notice was made absolute on 9th January, 1987.

4. On 22nd April, 1987 the 1st respondents issued to the appellants an insolvency notice calling upon them to make payment within 35 days from service of the amount then due under the said decree. The insolvency notice was served on 28th April, 1987. The period of 35 days therefrom expired on 3rd June, 1987 and the act of insolvency then became complete. On 13th August, 1987 the 1st respondents filed against the appellants the petition for adjudicating them insolvent. It was based on the ground of the act of insolvency committed pursuant to non-compliance with the insolvency notice. On 5th July, 1988 an affidavit in reply was filed by the 1st appellant. It was contended, firstly, that the petition was time barred and liable to be dismissed in view of the decision of the learned Single Judge of this Court in (Re. Bhimji Nanji Co)1, 71 Bom.L.R. 688. It was contended that the ex-parte decree passed on 4th March, 1976 had become time-barred on 3rd or 4th March, 1988 and there was no debt existing against the appellants under section 12 of the Presidency Towns Insolvency Act. Secondly, the affidavit contended that the decree was secured by hypothecation of goods which had neither been given up or valued as required by section 12(2) of the Act. Thirdly, it was contended that the hypothecated goods had not been sold and the proceeds thereof had not been credited so that the amount due under the decree was not ascertainable. No affidavit in rejoinder was filed. The petition was made absolute, as aforestated by the judgment and order under appeal. The learned Single Judge noted that the main contention on behalf of the appellants (the judgment debtors before him) was that, the decree being not executable on the date of the hearing of the petition and at the time when the order of execution had to be passed, the petition was not maintainable. Reliance in this behalf was placed upon the judgment in Bhimji Nanji's case. The learned Judge considered the judgment and found himself unable to understand some parts of it. To his mind the judgment would create "an untenable position". He "would rather say that this case should be confined to the facts of that case only." The learned Judge held that after service of an insolvency notice it was for the judgment debtor to make an application for discharge thereof within the time prescribed. It was in that notice that he had

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