CHANAMBAM KULACHANDRA SINGH Vs. KOIJAM TOMBI SINGH
HIGH COURT OF GAUHATI
Chanambam Kulachandra Singh
Koijam Tombi Singh
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R.S. Bindra, J. -
(1.) To appreciate the legal point involved in this revision petition filed under Sec. 115 of the Civil Procedure Code read with Sec. 34 of the Manipur (Courts) Act, 1955, the facts may be set out briefly.
The petitioner Ch. Kulachandra Singh secured a decree for recovery of Rs. 5,335.25 against the respondent K. Tombi Singh on 22 -4 -1952 from the Court of the District Judge, Manipur. On appeal by Tombi Singh to this Court, the amount of the decree was cut down to Rs. 4,500.00 on 16 -6 -1954. When Kulachandra Singh filed an execution application in 1954 and prayed for arrest of Tombi Singh, the latter filed a petition for insolvency in this Court and he was adjudicated insolvent on 17 -8 -1955. Subsequently, Kulachandra Singh moved an application in this Court on 11 -11 -1960 for annulment of the adjudication, on the plea that Tombi Singh owned property which far exceeded the debts owned by him. That application was accepted on 16 -6 -1962 by the Subordinate Judge, Imphal, to whom it had been transferred for disposal, and the adjudication of Tombi Singh as insolvent was annulled.
Thereafter, Kulachandra Singh sued out the execution of the decree by an application dated 6 -8 -1962. This time Tombi Singh filed objections under Sec. 47 of the Civil Procedure Code contending that the execution application was barred by time, having been filed more than three years after the decree had been made by this Court on 16 -6 -1934. Kulachandra Singh joined issue with Tombi Singh on that point by claiming the benefit of Sec. 78(2) of the Provincial Insolvency Act (hereinafter called the Act). The objections of Tombi Singh were dismissed by the Executing Court but he challenged the correctness of that Court's order by going in appeal to the Court of the District Judge. The appeal came up for hearing before the Additional District judge who by his judgment dated 9th September, 1968 set aside the order of the executing Court and remanded the case to it with the direction that Kulachandra Singh should be given an opportunity to prove by evidence the requirements of the proviso to Sec. 78 (2) of the Act. It is against that appellate judgment of the Additional District Judge that Kulachandra Singh has come up in revision to this Court.
(2.) It was submitted by Shri Somorendra Singh, the learned counsel representing the decree -holder, that since the objection founded on the proviso to Sec. 78 (2) of the Act had bean raised by Tombi Singh for the first time in the Court of the District Judge and since that objection raises a question of fact, the appellate Court had gone wrong in entertaining that objection and remanding the case. Another grievance voiced by Shri Somorendra Singh was that though he had produced certain certified copies before the Additional District Judge to establish that Kulachandra Singh had proved the debt before the insolvency Court, but he (the Additional District Judge) did not take those documents into consideration.
(3.) It is appropriate that Sec. 78 (2) of the Act should be set down here. It runs as under:
78. Limitation (1) x x x
(2) Where an order of adjudication has been annulled under this Act, in computing the period of limitation prescribed for any suit or application for the execution of a decree other than a suit or application in respect of which the leave of the Court was obtained under sub -section (2) of Sec. 28) which might have been brought or made but for the making of an order of adjudication under this Act, the period from the date of the order of adjudication to the date of the order of annulment shall be excluded:
Provided that nothing in this Sec. shall apply to a suit or application in respect of a debt provable but not proved under this Act.
A plain reading of the sub -section shows that before its benefit can be claimed by the decree -holder he must prove the following conditions:
(1) That the judgment -debtor had been adjudicated insolvent and that his adjudication had subsequently been annulled;
(2) That the execution application respecting which the extension of time is sought could have been filed but for the adjudication order;
(3) That no leave of the Court had been secured under sub -section (2) of Sec. 28 of the Act; and
(4) That the execution application relates to a debt which had been proved under the Act.
Since it is the decree -holder who seeks exclusion of certain period while computing the period of limitation respecting the execution application filed by him, it is for him to prove that his case is covered by the special provision contained in Sec. 78 (2) of the Act and not for the judgment -debtor to establish that requirements of the proviso thereto are not satisfied. Hence I cannot accept the contention of Shri Somorendra Singh that it was for Tombi Singh to firstly allege in the executing Court and then to establish that the decretal amount due by him to Kulachandra Singh had not been proved by the latter in terms of the Act. In view of that legal situation, the burden lay squarely on Kulachandra Singh to satisfy the executing Court that the decretal debt had been proved by him in the insolvency Court to qualify himself for claiming the benefit of Sec. 78(2) of the Act. Hence, I cannot find any fault with the course adopted by the Additional District Judge.;
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