Bar of limitation saved.

This revision petition is against the order in E.P.No.112 of 1948 in S.C.No.38 of 1935 passed by the learned Subordinate Judge of Amalapuram. In S.C.No.38 of 1935 the first respondent who is the decree-holder obtained a decree against five persons on the foot of a promissory note, dated 10th October, 1933, execuced by defendants 1 to 3 in the suit. The fifth defendant is the son of the third defendant. During the pendency of the suit, defendants 1, 2 and 3 were adjudicated insolvents on 2nd October, 1935, and the Official Receiver was impleaded in the suit as the sixth defendant in I.A.No.70 of 1936, dated 24th February, 1936. The decree actually passed was that defendants 1 to 3 from out of the properties in the hands of the Official Receiver, i.e., the sixth defendant, and defendants 4 and 5 from out of their joint family property should pay the plaintiff the sum of Rs.470 with interest. During the pendency of the insolvency, the third defendant’s share in the family properties was sold by the Official Receiver, and was purchased by a stranger. The purchase apparently was of an undivided share in the property. In pursuance of the sale after obtaining the sale deed, the purchaser seems to have got the property partitioned into two shares and obtained delivery of the father’s share, i.e., the share of the third defendant. The adjudication was however annulled on the 21st December, 1943, and it is not known whether the insolvent obtained a discharge before the annulment of the adjudication. After the annulment, on the 2nd August, 1945, an execution petition against all the defendants was filed, which was finally rejected on 10th December, 194.5, on the ground that certain information which the office required the decree-holder to give was not furnished. This was followed by another application which is unnumbered and is dated 5th January, 1948. That application also was against all the defendants, and it was dismissed on 6th February, 1948.

After all this, the present E.P.No.112 of 1948 was filed on the 8th April, 1948, for attachment of immoveable property belonging to defendants 3 and 5. This application was resisted by the fifth defendant, the petitioner, on the ground that the application as against him was barred by limitation. The learned Judge held that the application was not barred by limitation and directed execution to proceed. His view was based entirely upon section 28-A of the Provincial Insolvency Act which was introduced for the first time in April, 1948. The present application is within less than 12 years from the date of the original decree The previous application filed in 1945 and 1948, if they were in time as against the fifth defendant, would certainly save limitation so far as the present application is concerned. The question therefore is whether the application filed in 1945 nearly nine years after the date of the decree is in time against the fifth defendant the son of the third defendant. The insolvency of the father no doubt under the law, as it now stands, which has retrospective effect vested not only the share of the father but also the power of the father to dispose of the properties of the sons, in the Official Receiver, but actually the Official Receiver sold only the father’s interest in the property, i.e., the undivided half share and did not exercise the power of the father by bringing to sale the share of the son also. Section 28 of the Provincial Insolvency Act did not prevent the decree-holder from proceeding in execution of the decree against the son’s share notwithstanding the vesting of the power to dispose of the property, in the Official Receiver. That vesting does not take away the power of the son to sell the property in his own right, and much less prevent the execution creditor from proceeding with the sale of the son’s share. There is no bar therefore under the law preventing the decree-holder from executing the decree against the son.

The learned Subordinate Judge seem