Sankaranarayana Aiyar Firm ... vs Yegnalakshmi Ammal And Ors. on 16 September, 1938
583 and Phani Bhushan Basu v. Shoghi Bhusan Maity (1935) 60 C.L.J. 581. It has therefore been urged on behalf of the respondent that an insolvent should not be similarly held entitled to present an application for execution of a decree which had been obtained by him when he was not declared to be such. It can be legitimately argued that the money which may be realised in an execution would vest in the Receiver but can the power or the right to make an application for execution be considered to be 'property' within the meaning of Section 28 of the Provincial Insolvency Act and should he be held to have been deprived of that power or stripped of that right in consequence of an order of his adjudication particularly when there is no contest between him and his receiver? Should he not in that case be regarded to be aiding in the realisation of the property and the distribution of the proceeds among his creditors? Is there any statutory bar contained in the Civil Procedure Code or under the Provincial Insolvency Act which would take away the right of an insolvent from making an application for execution of a decree obtained by him before he was declared to be one? None has been pointed out to me by the learned Counsel for the respondent, and I have not been able to discover it myself. The provisions contained in Section 28 of the Provincial Insolvency Act debar a creditor during the pendency of an insolvency proceeding from having any remedy against the property of an insolvent in respect of a debt due by him or from commencing any suit or other legal proceeding against him except with the leave of the Court, but they do not preclude an insolvent from presenting an application for execution of a decree obtained by him before he was declared to be an insolvent. It may not be possible for an insolvent to recover any money from Court or to receive any payment in execution of a decree for which terms may have to be imposed on him either by the executing or the insolvency Courts but this does not entitle one to assume that he has no power to make an application for execution. It appears to me therefore, without looking at the cases cited by the learned Counsel on behalf of the parties, that there is no warrant for the proposition that an insolvent is not entitled to make an application for execution of a decree obtained by him before an order for his adjudication was passed.