Govinda Menon, J.-The judgment-debtor against whom a decree for a sum of money had been passed in I.P.No. 8 of 1927 is the appellant in this appeal. One Chekka Rangayya was adjudicated an insolvent on 17th November, 1927, and his properties vested in the Official Receiver of West Godavari. This Chekka Rangayya had to realise a certain sum of money from the present appellant and therefore, the Official Receiver filed an application under section 4 of the Provincial Insolvency Act and the Court passed an order directing the appellant to pay a sum of money as due to Chekka Rangayya to the Official Receiver of West Godavari on 9th April, 1941. According to the provisions of the Act, this order is tantamount to a decree which is capable of execution. The decree was for a sum of Rs. 8,120-5-11. Against the order directing the payment of this sum, an appeal was preferred to this Court in C.M.A.No. 545 of 1941 which was dismissed on 4th February, 1943. In the meanwhile, the insolvent had died on 13th November, 1941, and his legal representative had been brought on record on 22nd September, 1942. But this is a matter of minor importance because nothing depends on the question as to whether the legal representative was brought on record in time or not. As the Official Receiver had obtained the decree on 9th April, 1941, which was confirmed on appeal on 4th February, 1943, he applied for executing the same against the appellant on 14th July, 1943, by E.P.No. 59 of 1943. This petition underwent various adjournments and finally it was dismissed with costs on 28th February, 1944.

Thereafter an application for annulling the adjudication had been taken before the Insolvency Court with the result that on 18th November, 1944, the adjudication of Chekka Rangayya had been annulled. The result of this order according to section 37, Provincial Insolvency Act is that the insolvent was relegated to the position which he occupied prior to the date on which the application for adjudication had been made. This order annulling the adjudication was again taken up to this Court and in C.M.A.No. 641 of 1945, this Court set aside the order annulling the adjudication and restored the adjudication to its original state on 3rd September, 1947. The present application E.P.No. 8 of 1948 out of which this appeal arises was filed on 7th February, 1948. The learned District Judge held that the application was not barred because according to him the period of three years which has to be computed from 28th February, 1944, expired during the period when the order annulling the adjudication was in force and therefore the Official Receiver had three years from 3rd September, 1947, to file the application for execution.

Mr. V. Ramaswami Aiyar for the appellant contends that even though there was an order annulling the adjudication on 18th. November, 1944, it was open to the insolvent who had been relegated to the position which he occupied prior to the adjudication to have applied for executing the decree and he not having done so within three years of 28th February, 1944, i.e., before 28th February, 1947, the present application is barred under Article 182 (5) of the Limitation Act. On the other hand Mr.V. Suryanarayana for the Official Receiver very strenuously contends that the Official Receiver was eo nomine the decree-holder and when by reason of the order annulling the adjudication it became impossible for him to execute the decree there was something in the nature of an impediment or embargo-put upon the Official Receiver from executing the decree with the result that when that impediment was removed or the embargo dissolved, it was possible for the Official Receiver to have availed of the provisions of Article 181 of the Limitation Act and apply for execution of the decree. In other words the learned counsel contends that there was an obstacle put upon the Official Receiver from executing the decree by the annulment of the adjudication. In our opinion the argument

Click Here to Read the rest of this document