Exercise of discretion judicially.

Kailasam, J.

This is a petition by a creditor for adjudging the respondent-debtor an insolvent. Though various acts of insolvency are alleged in the petition, the only act, which the learned counsel for the petitioning creditor stresses, is that there was an attachment of the debtor's properties for over 21 days. Another creditor attached the properties of the debtor in O.S. No. 1703 of 1961, City Civil Court, Madras, before judgment on 10th August, 1961. The order of attachment was made absolute with the consent of the debtor on 21st September, 1961. The suit was decreed on the same day and the attachment was ordered to subsist. On 24th November, 1961 the decree-holder filed Execution Petition No. 1664 of 1961. The City Civil Court ordered as follows: “Attach 8th December, 1961”. On 8th December, 1961 the Court recorded as follows: “ It is reported that the property has been already attached in attachment before judgment and made absolute.” On 23rd December, 1961 as no sale papers were filed the execution petition was dismissed as withdrawn. The present creditor's petition was filed on 19th December, 1961.

There is now no dispute that the attachment was subsisting for more than 21 days. But the learned counsel for the debtor contends that the petition for attachment having been finally withdrawn it must be deemed that no petition existed and that an attachment for 21 days in a petition that was finally withdrawn could not be held to satisfy the requirements under section 9 of the Presidency Towns Insolvency Act. Before I consider the importance of the question that is raised I will dispose of another contention put forward by the learned counsel for the respondent. Mr. V. P. Raman submitted that the debt of the petitioning creditor was already discharged. He examined on behalf of the respondent one K. V. Subrahmanyam, a Lecturer of Vivekananda College. According to the witness, two promissory notes Exhibits P-2 and P-3 Were written by him and they were written at the residence of Sivalinga Chettiar. He deposed that though Sivalinga Chettiar advanced the money, the promissory note was taken in the name of Shanmugha, who assigned his debt in favour of the petitioning creditor. The witness also deposed that a fresh promissory note for Rs. 80,000 was written and Sivalinga promised to return the old promissory notes. When specifically asked, the witness was not able to say whether Exhibits P-2 and P-3 were discharged by the execution of the fresh promissory note for Rs. 80,000. There is no endorsement of discharge on Exhibits P-2 and P-3. On the evidence of this witness it cannot be. found that the promissory note executed in favour of the assignor of the petitioning creditor was discharged. This contention of the respondent is therefore rejected.

Section 9 of the Presidency Towns Insolvency Act, 1909, enumerates the various acts of Insolvency. Section 9 (e) provides that a debtor commits an act of insolvency, if any of his property had been sold or attached for a period of not less than twenty-one days in execution of the decree of any Court for the payment of money. On a reading of the section it is seen that a respondent can be adjudged an insolvent if his property had been sold or attached for a period of not less than 21 days in execution of a decree for payment of money. In this case it is not disputed that the property of the respondent was attached for more than 21 days. But the contention is that the petition for attachment of the property was withdrawn at a later date and therefore the attachement cannot be taken into account. It may be noted that on the date of the filing of this petition, that is 19th December, 1961 the petition for attachment was not withdrawn. It was subsequently withdrawn on 23rd December, 1961. A Full Bench decision of this Court in Periakaruppan v. Arunachalam, (1940) 1 MLJ. 228: I.L.R. (1940) Mad. 441 (F.B.) held that when an adjudication had taken place under the Provincial Insolvency Act and