In summary insolvency proceedings, where the court has not framed the schedule of creditors and distributed the assets and closed the insolvency proceedings in the usual course, but has annulled and dropped the adjudication proceedings mid-stream, the creditor can still execute the decree against the judgment-debtor, provided that the decree is not barred by limitation.

ORDER :- This is a petition filed by one Muthu Pathar for revising and setting aside the order of the Subordinate Judge, Kumbakonam, dated 14-7-1953, in E.P. No. 85 of 1953, in S.C.S. Nos. 107 of 1949, directing his arrest by 29-7-1953.

2. The facts are briefly these : The decree in S.C.S. No. 107 of 1949 was passed against the petitioner on 14-4-1949. Later on, this petitioner filed I.P. No. 12 of 1049 for adjudicating him as an insolvent. That petition was treated as a summary petition. He was adjudicated insolvent on 2-2-1950. The adjudication was annulled on 22-9-1950, as he did not apply for discharge.

In that I.P., on 5-10-1949, when it was pending, lie had mentioned the decree debt under the above small cause suit as a debt binding on him. On 3-1-1953, E.P. No. 85 of 1953 was filed by the decree-holder for arresting him, as he was said to be possessed of sufficient assets and was yet evading to pay the decree amount. The petitioner, the judgment-debtor, remained absent. But as the learned Subordinate Judge felt some doubt regarding limitation, he insisted on a further notice and personal service on the judgment-debtor, viz., this petitioner.

This petitioner then appeared by counsel, and contended that the decree was barred by limitation and that even if it was not so barred, it could not be executed, because the decree-holder had not proved his debt in the insolvency.

3. The learned Subordinate Judge held against the petitioner on the point of limitation because of the judgment of Chandrasekhara Aiyar, J. in Velayudha Naicken v. Annamalai Chetti, 1945 Mad 215 (AIR V 32) (A), where the learned Judge held that a period of three years was available to any creditor, whose debt was acknowledged by the insolvent during the insolvency proceedings, from the date of the annulment or termination of the insolvency, and this E.P. would, therefore, be in time, as the adjudication was annulled on 22-9-1950, and this E.P. was filed on 3-1-1953 within three years thereof. Regarding the objection raised by the petitioner that S. 78(2) Provincial Insolvency Act would be a far to this E.P., as the decree-holder had not proved his debt in insolvency, the learned Subordinate Judge held that it would not be of any use in a case of summary proceedings, as in this case, where the creditor had no need to prove his debt and indeed is not expected to prove his debt. Having rejected these two contentions, he forthwith ordered the petitioner to be arrested without recording his reasons. Hence this civil revision petition.

4. I have perused the entire records, and heard the learned counsel on both sides. The learned counsel for the petitioner raised the same old two contentions before me, and also one additional contention, viz., that the arrest had been ordered without giving a finding that the petitioner was possessed of sufficient assets and yet had evaded payment of the decree amount. I agree entirely with the lower court regarding its finding on the first two, contentions.

Though the learned counsel for the petitioner wanted to canvass the correctness of the decision of Chandrasekhara Aiyar, J. in 1945 Mad 215 (AIR V 32) (A), he was unable to show any ruling to the contrary, let alone a Bench ruling or a Full Bench ruling or a Supreme Court ruling. I am satisfied that the view of Chandrasekhara Aiyar, J. is the only possible view which can be taken in such circumstances. An acknowledgment during insolvency would not give any right to the creditor to file a suit forthwith.

Laws of limitation are intended to cover periods when a suit could be filed, at least the starting point must allow of a suit being filed. Here, no suit could be filed on the date of the acknowledgment or till the insolvency proceedings closed. So, the only sensible view to take would be to treat the three years period of limitation, given by that acknowledgment, as running from the date of the annulment of the adjudication, when alone a suit could have been filed. Hence the