JUDGMENT - D.R. DHANUKA, J.:---This notice of motion raises an interesting question of law as to whether the remedy of decree-holder Union Bank of India to execute the decree dated 17th January, 1977 passed in Suit No. 1747 of 1976 was extinguished on the 'relevant date' and whether the Insolvency Notice dated 27th June, 1989 based on the said decree is liable to be set aside as a consequence thereof. The question which arises for consideration of the Court is as to whether the decree forming the basis for issue of insolvency notice was alive on the date when the insolvency notice was issued or on the date when the notice of motion was taken out to set aside the insolvency notice herein.

2. The material facts required to be stated for the purpose of disposal of this notice of motion are as under :

(a) On 17th January, 1977, Desai J., passed a consent decree in favour of Union of India and against M/s. T.A. Darbar Company, Turabali Abdulhusain Darbar and Mohammadhusain Abdulhusain Darbar in Suit No. 1746 of 1976. By the said consent decree passed in the said suit, the defendants were directed to pay to the plaintiff Union Bank of India a sum of Rs. 46,520.31 for the principal sum, Rs. 525.74 for interest and the cost of the suit as specified therein aggregating to sum of Rs. 48,494.05 along with simple interest on the principal sum of Rs. 46,520.31 at the rate of 6% per annum from the date of the decree till payment. The said decree was an instalment decree. By the said decree, the defendants were directed to pay the decretal amount by monthly instalments of Rs. 1,200/-, first of such instalment to be paid on or before 10th February, 1977 and subsequent monthly instalments to be paid on or before 10th day of each and every succeeding month till the entire decretal amount was paid in full. By the said decree it was further directed that in the event of the defendants committing default of any three monthly instalments on their respective dates as set out in the decree, the plaintiff shall be entitled to recover the entire decretal amount or balance then remaining due, as the case may be, forthwith. It is not necessary to refer to other portions of the said decree.

(b) The judgment-debtors, being the defendants in the said Suit No. 1746 of 1976, did not pay the first instalment, second instalment and third instalment on the due dates specified. The judgment-debtors committed all the three defaults by 10th April, 1977. The judgment-debtors paid a sum of Rs. 1200/- to the creditor on 11th April, 1977 for the first time after the right had accrued to the creditor to execute the decree for entire amount forthwith. By a letter dated 14th April, 1977 addressed to the debtors, the decree-holder Bank recorded that the Bank had accepted the said sum of Rs. 1200/- on 11th April, 1977 without prejudice to their rights and contentions towards the entire decretal amount which had become payable at once. By the said letter, the decree-holder Bank exercised their option to recover the entire decretal amount forthwith in view of three defaults already committed by the judgment-debtors by 10th April, 1977 as aforesaid. By the said letter dated 14th April, 1977, the Bank called upon the judgment-debtors to pay the entire balance of the decretal amount with interest immediately. By the said letter the Bank threatened to execute the decree for the entire amount if the amount was not paid. The judgment-debtors as well as the creditor rely on the said letter.

(c) Thus the said decree ceased to be an instalment decree with effect from 14th of April, 1977. Subsequently the judgment debtors made some part payments to the creditor as endorsed on the decree. Amount specified in the insolvency notice is outstanding.

(d) On 27th June, 1977, the said decree was sealed.

(e) No application for execution could be filed under the rules of our High Court on the Original Side at the relevant time unless the application for execution was necessarily accompanied by c

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