S. 28 (7) of the Provincial Insolvency Act, which provides for relation back of the date of adjudication to the date of presentation of the petition for adjudication, governs S. 34 (2) of the Act, which specifies the debts that are provable under the Act.

( 1 ) THIS appeal under S. 75 of the Provincial Insolvency Act involves a point of law on which judicial decisions are not uniform. The point so involved is as to whether a debt incurred by a debtor who was subsequently adjudged to be an insolvent at a time when the proceeding was pending but the order of adjudication had not been made can be said to be a debt provable under the Act.

( 2 ) FACTS relevant for our present purpose are not in dispute. On May 22, 1967, the present appellant, Nirupama Pal instituted Insolvency Case No. 2 of 1967 in the Court of the learned District Judge, Hooghly, for adjudging the first respondent Kalipada Roy Chowdhuri as insolvent. It was a proceeding under the Provincial Insolvency Act. An interim receiver was appointed on July 26, 1967. On July 23, 1967, Kalipada executed a Hundi for a sum of Rs. 14,000/- in favour of Amarendra Nath Sen who obtained an ex parte decree against Kalipada in a suit in the original side of this Court on August 9, 1970. On December 20, 1969, the learned District Judge made an order adjudging Kalipada to be an insolvent and the interim receiver was subsequently made the receiver of the estate of the insolvent. Amarendra Nath Sen after an unsuccessful attempt to execute the ex parte decree, filed an application in the insolvency proceeding on March 2, 1974, for inclusion of his name in the Schedule of creditors. This application was opposed by the appellant on the ground that the debt to Amarendra being a post insolvency debt is not provable under S. 34 of the said Act and as such cannot be entertained. This objection of the appellant having been overruled the learned District Judge has by the impugned order dated 28-5-1979 held that Amarendra's application is maintainable for proving the debt to him for inclusion in the Schedule. That is the decision which is being challenged in the present appeal.

( 3 ) UNDER S. 33 of the said Act when an order of adjudication has been made, all persons claiming themselves to be creditors of the insolvent in respect of debts provable under the Act are required to tender proof of their respective debts for inclusion in the Schedule to be framed. Section 34 (2) of the said Act specifies what are the debts that are provable under the Act and it provides as follows:-" (2) Save as provided by sub-section (1), all debts and liabilities, present or future, certain or contingent, to which the debtor is subject when he is adjudged an insolvent, or to which he may become subject before his discharge by reason of any obligation incurred before the date of such adjudication, shall be deemed to be debts provable under this Act. "

( 4 ) SINCE the second alternative as specified by this sub-section is not attracted to the facts of the present case, the question which arises for consideration is as to whether the debt was incurred at a date prior to the debtor being adjudged an insolvent. Or in other words what is the date of adjudication of the debtor as an insolvent. On the plain reading of this subsection it would mean the date of the order adjudging the debtor an insolvent. This had been the view expressed by Rangoon High Court in the cases of V. Chettyer v. Collector Bassiun, AIR 1937 Rang 50 and K. N. K. I. Chetty v. B. A. Tin, 61 IC 640. Same view was expressed by a learned single Judge of the Bombay High Court in the case of Jamshetji Framji Harevalla v. Pestonji Cavasji Gonda, AIR 1932 Bom 511. Mr. Milter appearing in support of the order impugned in this appeal has contended that we should adopt this view and there is no reason why we should import the fiction of relation back in terms of S. 28 (7) in applying S. 34 (2 ). According to Mr. Mitter S. 28 (7) does not govern S. 34 (2 ).

( 5 ) BUT precisely that is the point on which judicial opinions differ. Some of the High Courts including Lahore and Madras High Courts have taken the view that on the scheme of the Act, S. 28 (7) is intended to control and govern S. 34 (2)