PONNUSAMI CHETTIAR Vs. KALIAPERUMAL NAICKER

JUDGEMENT

(1.) This Civil Revision Petition is presented in the following circumstances : The petitioner filed a Small Cause suit against the respondent for a. sum of Rs. 332 said to be owing on account of dealings. The plaint was filed on 19 April 1922. On 16 November 1920, the respondent had presented an insolvency petition in the District Court. On 19 March 1921, he entered into a composition with certain creditors. On 20 December 1921, he was adjudged in-solvent. On 29 September 1922, the District Court accepted the composition and annulled the adjudication. The plaintiff's suit was obviously instituted while the insolvency proceedings were pending, and, therefore, under Section 25, Pro. Ins. Act, could not have been commenced without the leave of the Court.. No leave was obtained. The respondent, therefore, raised a preliminary objection that the suit was not maintainable. The lower Court has upheld that objection and dismissed the suit, and this civil revisions-petition is against that decision.

(2.) Petitioner's contention is that on the annulment of adjudication the insolvency proceedings were at an end, that leave to maintain the action was, therefore no longer necessary and decree should have been given. Two points arise on this: (1) Whether on the annulment of adjudication the insolvency proceedings ceased to-be pending and (2). Whether the initial absence of leave can be condoned or whether leave became unnecessary after the insolvency proceedings had come to an. end, assuming it to be found that they had come to an end. I shall take the latter point first, since what is to my mind the correct view, is sufficient to decide this case.

(3.) Section 28(2) lay a down that no creditor to whom the insolvent is indebted in respect of any debt provable under the Act shall, during the pendency of insolvency, commence any suit except with leave of the Court. From Section 26, Civil P.C. and Order 4, Rule 1, it is clear that a suit commences with the presentation of a plaint. Therefore, Section 28 (2) implies that until the leave of the Court is obtained the plaint shall not be entertained. The plaintiff's plaint, therefore, should have been rejected in limine, and I do not think he can claim to maintain the suit now because it can now be presented without the leave of the Court. That such leave is a mandatory condition precedent to the entertainment of the plaint has been held by a Bench of this Court in Ghouse Khan V/s. Balasubba Rowther A.I.R. 1927 Mad. 925, with reference to this section of the Provincial Insolvency Act and by one learned Judge of the Bombay High Court in In Re: Dwarkadas Tejbhandas [1916] 40 Bom. 235, under the corresponding section of the Presidency Towns Insolvency Act. The same view had been taken in a case in Sind in Jivanji Mamooji V/s. Ghulam Hussain [1918] 12 S.L.R. 20, in Rowe & Co. V/s. Tan Thean Taik A.I.R. 1925 Rang. 105 and in Panna Lal Tassaduq Hussain V/s. Hira Nand-Jiwan Ram A.I.R. 1928 Lah. 28. No ruling to the contrary in favour of the petition has been cited to me. These rulings clearly lay down that the absence of leave is a bar to the original institution of the suit, and that a suit commenced without leave cannot be continued by obtaining leave at any subsequent stage thereto.