The main legal point established in the judgment is that the insolvency proceedings did not bar the suit for debt recovery, as the debt was not included in the composition arrangement and the suit was based on the debt itself.

Ramesam, J.

1. This appeal arises out of a suit brought by the plaintiff Kothandarama Ayyar to recover his half-share of a debt evidenced by a promissory note executed by defendants 1 and 2 in favour of his deceased brother Natesa Ayyar and to get the other half-share paid to defendant 3 who is Natesa Ayyars widow. The promissory note was executed on 21st July 1925 for Rs. 3,945-8-10 according to the particulars given therein. The plaintiff alleged that at the time of the execution of the suit note, the plaintiff and his brother were undivided. Natesa Ayyar died on 22nd March 1926 leaving a widow Avayambal Ammal the present defendant 3. The relative rights of the plaintiff and defendant 3 in the properties of the family being the subject of doubt a partition-deed and an agreement were executed between them on 6th June 1926. The partition-deed generally provides that the family properties not expressly mentioned in it should be taken equally, (Ex. 1). But the agreement (Ex. E) expressly provides that the amount due to the family and mentioned in the list attached hereto shall be collected either in the ordinary course or through Court bearing the expenses in common and the amount realised shall from time to time be received equally.

2. A schedule of debts was appended to it and the debt evidenced by the suit promissory note is included in it. The suit was filed on 23rd July 1928 but it is admitted that 21st and 22nd July were holidays and the Court reopened on the 23rd. No question of limitation was raised in the issues nor was any argued before us. Defendant 1 pleaded that the suit debt belonged exclusively to the deceased Natesa Ayyar (Para. 6), and that the partition-deed was brought about fraudulently (Para. 8). He also pleaded that the suit not being based on an assignment from defendant 3 should be dismissed. Issue 1 is whether the plaintiff is entitled to maintain the suit. We may assume it is intended to raise all possible technical objections to the maintainability of the suit. Defendant 3 remained ex parte. She was so declared on 3rd September 1928. The trial of the suit began on 26th November 1928 and arguments were partly heard on 27th November. On 30th November on the plaintiffs request the case was adjourned for the production of succession certificate for defendant 3s half share. On 12th December the plaintiffs pleader put in a petition to set aside the ex parte order against defendant 3. This is somewhat extraordinary because one would expect that defendant 3 would herself put in such a petition. On the same day a written statement was filed by defendant 3 appearing through the plaintiffs vakil in which she prays for a decree in her favour for one-half of the amount according to the plaint. She does not pray for her name being transferred as a plaintiff. The written statement was not accompanied by any affidavit of hers explaining her late appearance. On that date the order declaring her ex parte not being set aside she was not even entitled to file a written statement. The case was adjourned to 18th December 1928 for the production of the succession certificate in respect of her share. On 18th December the ex parte order against defendant 3 was set aside and the case was adjourned for the production of the succession certificate. Succession certificate was ordered to be issued to her on 20th December by the same Sub-Judge.

3. It was produced on the 21st and exhibited as Ex. 6, and judgment was delivered on the same day giving a decree for the whole amount of the debt in favour of the plaintiff and defendant 3. Defendant 1 files this appeal. The first of the points raised by the appellant which should be dealt with in the logical order is that the whole suit is barred and is not maintainable by reason of certain proceedings in the insolvency of defendant 1. Defendant 1 became very heavily indebted. He filed I.P. 15 of 1925 in the Subordinate Judges Court of Mayavaram for being-declared insolvent. It was tra