An act of insolvency committed under Section 9(e) of the Presidency Towns Insolvency Act cannot be purged by subsequent events, such as the setting aside of the decree in execution of which the attachment was made.

This is a petition under Section 9 (e) of the Presidency Towns Insolvency Act (hereinafter referred) to as the Act) seeking to adjudicate the respondents as insolvents on the ground that attachment of the movables of the debtors were subsisting for a period exceeding 21 days.

2. By an ex parte order passed on 24-7-1974, the respondents were adjudicated as insolvents. That order was later on set aside. Subsequently, on behalf of the second respondent (I. S. K. Menon), it was stated that there was no defence to the petition and, therefore, he was adjudicated insolvent by an order of Sethuraman J. dated 19-8-1974. Hence, the only question that survives is whether the first respondent could be adjudicated as insolvent.

3. In the counter-affidavit, the stand is taken by him that he is not the proprietor of the shop, Zacharia Stores, at No. 39 Purasawalkam High Road, Madras 7, and that the shop belongs to his son. Further, he was not carrying on business within the jurisdiction of this Court within one year prior to the presentation of the petition. As the attached movables do not belong to this respondent, the alleged subsistence of attachment would not enable the petitioner to seek adjudication. Further, inasmuch as the ex parte decree in O. S. 1637 of 1973 in execution of which alone the movables were attached, had been set aside, the basis of the attachment itself is gone, and, therefore, it cannot form the basis of adjudication.

4. On the side of the petitioner, Exs. P. 1 to P. 15 have been marked, while Exhibits on the respondent's side consist of R. 1 to R. 7. On behalf of the petitioner, P. W. 1, the petitioning creditor, was examined and he speaks to the fact of attachment and that the amount was borrowed for the benefit of the first respondent. The first respondent has been examined as R. W. 1, who, in his oral evidence would state that the promissory note on which the decree was sought was a printed form and the blanks were filled up by his son and because the creditor insisted upon R. W. 1 signing it, he signed it as the proprietor of Zacharia Stores, since the creditor wanted it that way.

5. R. W. 2 is the son of R. W. 1 and he would claim to be the proprietor of Zacharia Stores and E. A. 7511 of 1974 in E. P. 219 of 1974 was filed on behalf of his father seeking to claim the movables, but the reason for not pursuing the same was by then the ex parte order forming the basis of the execution petition was set aside.

6. In this state of pleadings and evidence, the two questions that arise for consideration are (1) whether the first respondent is the proprietor of Zacharia Stores and (2) inasmuch as the ex parte decree, in execution of which the movables came to be attached, was set aside subsequently, whether it could be said that the prior valid attachment subsisted for more than 21 days.

7. As regards the first question, Ex. P. 2, the report of the bailiff says that at the time when the allachment was effected, the respondent was present and he pleaded only his inability to pay the decree amount. This report of attachment was dated 17-5-1974, but the first respondent would claim that he had discontinued his business and in support of which he would produce Exs. R. 2 and R. 3. They do not advance the case of the first respondent, since the assessee is only Zacharia Stores and it cannot be contended merely because R. W. 2 represented the matter before the Deputy Commercial Tax Officer that he was the proprietor or any description therein, would be of no consequence, and undoubtedly, better proof will be required to hold that R. W. 2 alone is the proprietor and not R. W. 1.

8. Then again, there is Ex. P. 7. That is a reply given to the advocate, which has also been signed by R. W. 1 as proprietor of Zacharia Stores. In addition to that, it is admitted by R. W. 1 that he issued a number of cheques towards such debt.

9. Though there is a dispute relating to the amount due, a careful perusal of Exs. P. 9 to P. 11, le