An order of discharge under the Insolvency Act releases the insolvent from the debt due under the decree, and even though the relief asked for in previous execution applications was no longer available, they still operated as steps in aid of execution.

Somayya, J.

1. The question raised in this miscellaneous second appeal is one of limitation. The decree which is sought to be executed by the application under appeal was one passed on 29th of July, 1932. Under the decree the first defendant was directed to pay a sum of Rs. 1385 with interest and costs. In default of payment a charge decree was given over certain properties in the hands of the second defendant. A right to apply for a personal decree in case the sale proceeds of the charged, properties were insufficient was also reserved. E.P. No. 1465 of 1934 was filed on 3rd July, 1934, for the arrest of the first defendant but it was dismissed for nonpayment of batta. Then, E.P. No. 1826 of 1937 was filed on 20th August, 1937- It was also for the arrest of the first defendant and was dismissed for non-payment of batta. The next one was E.P. No. 1408 of 1939 filed on 7th August, 1939, for arrest again of the first defendant and was dismissed as not pressed. Then comes the present application. E.P. No. 1134 of 1942 filed On 16th June, 1942. The question whether the present execution application is barred depends upon the answer to the question whether the two prior applications were applications in accordance with law. The facts which are relevant for the consideration of this argument are that the first defendant was adjudicated an insolvent on 9th November, 1934, in I.P. No. 216 of 1934, and was discharged in 1935 or thereabouts. Two points were raised. One is that E.P. No. 1826 of 1937 was riled for the arrest of the first defendant and that the arrest of the first defendant could not be had as the decree debt should be deemed to be extinguished as the result of the discharge order in I.P. No. 216 of 1934. The next point raised is that there was really no discharge absolute, that the insolvency proceedings still continued, that consequently E.P. No. 1826 of 1937 and the next application could not be filed without the leave of the insolvency Court and that therefore they are not applications in accordance with law. On the question whether if the insolvency proceedings are still pending an execution application filed without the leave of Court is one in accordance with law, reference is made to the decision in Jagadisan Pillai v. Narayanan Chettiar (1935) 71 M.L.J. 180 : I.L.R. 59 Mad. 759, which held that it was not. The same view was adopted by Burn, J., in Nagaratnam Pillai v. Ramaswami Iyer A.I.R. 1939 Mad. 195. But that question does not arise in this case as all the parties proceeded upon the assumption that there was an order of discharge in this case. It is argued by Mr. S. Panchapagesa Sastti, the learned advocate for the appellant, that the order that is exhibited in the case is not a final order of discharge and that without the production of any later order of absolute discharge it must be taken that the discharge is not proved and that the insolvency proceedings must therefore be deemed to continue. We have on record the order in the insolvency proceedings dated 12th March, 1935. That was an order of discharge on an application under Section 41 of the Provincial Insolvency Act filed for grant of an absolute order of discharge. The Subordinate Judge before whom the application came for hearing stated thus.:

I do not think it equitable to give him an absolute discharge on these contentions. He is directed to pay at the rate of Rs. 8 per month for 15 months and then to apply for absolute discharge. The discharge is suspended for 15 months. The further order, if any, of the insolvency Court is not produced. It is suggested on the other side that this order itself is one which should be taken to operate as an order of absolute discharge after the expiry of 15 months, that at any rate there must have been an order of absolute discharge granted later and that the production of such an order was not necessary as the fact of absolute discharge was not disputed. The learned District Judge in paragraph 3 of the judgm