Judgement CHAGLA, C.J. :- This is a reference under S. 5, Court-fees Act, 1870, and the very narrow question that calls for our determination is the meaning to be given to the expression appearing in Sch. III, Court-fees Act in Annexure-B of that schedule, "amount of debts due and owing from the deceased, payable by law out of the estate." Now, under S. 19-1, Court-fees Act, "no order entitling the petitioner to the grant of probate or letters of administration shall he made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the third schedule." and the third schedule seta out the form and in that form in Annexure-A bas to be set out the value of the moveable and immoveable properties of the deceased and in Annexure-B a schedule of debts has got to be set out and the first item in the schedule of debts is amount of debts due and owing from the deceased, payable by law out of the estate. The petitioner in this case contended before the Prothonotary that he was entitled to include in these debts two sums of Rs. 72,695 and Rs. 41,880 which were owed by the deceased to the sisters of his widow. Now, admittedly, both these debts are time-barred, and the contention of the other side is that as these are time barred debts the petitioner is not entitled to include them in the amount of debts due and owing from the deceased. These are debts which are not only owing but which are due, because they are presently payable but for the statute of limitation. No difficulty arises with regard to the interpretation of the expression "due and owing," but the difficulty arises when one has got to give a true meaning to the expression need by the Legislature, viz., "payable by law." An executor is entitled to pay time-barred debts, and therefore if in this case the executor were to pay these two debts to the two sisters of the widow of the deceased, he would be doing something which he is entitled to do by law and his conduct could not be questioned and he could not be proceeded against for devastavit. It is true that if a creditor were to sue the executor in respect of these debts and if the executor chose to plead the statute of limitation, the creditor would fail in his action, because although the debt subsists, the remedy has been extinguished by reason of the statute of limitation. But, in our opinion, we have got to look at this question not from the point of view of the creditor but from the point of view of the executor who is paying these debts. 2. The question, therefore, is whether the law permit the executor to pay these debts, or is there anything in law which prevents the executor from paying time-barred debts, and the answer to that question is clearly that there is nothing in law which prohibits an executor from paying time-barred debts. It is significant to note also that the Legislature has advisedly not used the expression "recoverable" but "payable." The difference between the two expressions "payable" and "recoverable" is fundamental, because in the case of the expression "recoverable" what is emphasised is the remedy; in the case of the expression "payable" what is emphasised is the right of the person paying to pay under the law. The Legislature in this case is not referring merely to enforceable debts; it is referring to all those debts which an executor in law is entitled to pay out of the estate of the deceased. The position as regards the right of the executor is made clear by S. 323, Succession Act, 1925, which provides that "the executor or administrator shall pay all such debts as he knows of, including his own, equally and rateably as far as the assets of the deceased will extend." It will be noticed that no exception is made in the case of statute-barred debts. 3. If we were to accept the argument of the Advocate General and to construe the expression "payable" as if it was the same as "recoverable" a very curious result would ensue. It is not disputed, and it cannot be disputed, that an executor has the right of promising to pay in writing a time-barred debt. If he does so, that debt would become an enforceable debt. It is not disputed, and it cannot be disputed, that an executor has the right of promising to pay in writing a time-barred debt. If he does so, that debt would become an enforceable debt. Therefore, according to the Advocate General, although an executor may easily get round this provision of the law by making a promise to pay and making the debt enforceable, he could not include this debt in Sch. III although the law permits him to pay it without necessarily promising to pay it in writing. In our opinion, the Legislature did not intend such an anomalous result. Therefore, in our opinion, the executor is entitled to include these two debts in Annexure-B to Sch. III. 4. No order as to costs. Reference answered. AIR (37) 1950 BOMBAY 75 [C. N. 22] "Emperor v. Khuma Arjun" BOMBAY HIGH COURT Coram : 2 BAVDEKAR AND CHAINANI, JJ. ( Division Bench ) Emperor v. Khuma Arjun - Accused. Criminal Appeals Nos. 689 to 692 of 1948, D/- 12 -7 -1949. Bombay Municipal Boroughs Act (18 of 1925), S.37, S.38, S.178 - MUNICIPALITIES - SANCTION FOR PROSECUTION - Municipalities - Prosecution for contravention of S.178 - Standing Committee is competent to accord sanction for prosecution. The Standing Committee can exercise two kinds of powers : (a) powers conferred upon it by the Act and (b) the residuary powers of the Municipality. The restriction on the Standing Committee imposed by S. 38 can only apply in respect of the residuary powers of the Municipality and not in respect of the powers which are conferred upon the Standing Committee by the Act. Hence the Standing Committee is competent to accord sanction for prosecution of persona for contravention of the provisions of S. 178. This power has not been taken away by S. 38 or S. 73 made by the Ahmedabad Municipality : AIR (22) 1935 Bom 201, Rel. on. [Para 2] H.M. Choksi, Government Pleader - for the Crown.C.K. Shah - for Accused. Judgement CHAINANI, J. :- These are four appeals by the Government of Bombay. The accused in these four cases were prosecuted under S. 178(3), Bombay Municipal Boroughs Act. The charge against them was that, in contravention of sub-s. (1) of S. 178, they had used certain lands for stabling cattle for the purpose of trading in milk without obtaining licenses from the Municipality. The accused in these four cases were prosecuted under S. 178(3), Bombay Municipal Boroughs Act. The charge against them was that, in contravention of sub-s. (1) of S. 178, they had used certain lands for stabling cattle for the purpose of trading in milk without obtaining licenses from the Municipality. The sanction for the prosecution of these four accused was given by the standing committee of the Municipality. Under S. 58(a), Bombay Municipal Boroughs Act, the Ahmedabad Municipality has made a rule No. 73 by which the sanitary committee has been declared to be the control, ling and executive committee in all matters relating to the departments of public health, sanitation, conservancy and removal of nuisances. It was, therefore, contended before the learned Magistrate that sanction for the prosecution of the accused should have been given by the sanitary committee, and that the standing committee was not competent to accord such sanction. The conditions of licenses to be issued under S. 178 have been prescribed by the standing committee. It was also urged before the learned Magistrate that, in view of the above R. 73, the standing committee had no power to prescribe the conditions of these licenses, and that consequently no prosecution could lie for failure to take out such licenses, as no valid conditions of such licenses have been prescribed. The learned Magistrate accepted both these contentions, and acquitted the accused. The Government of Bombay have appealed against the orders of acquittal. 2. Sub-section (2) of S. 37 of the Act provides that the standing committee shall exercise the functions allotted to it under the Act and, subject to any limitations prescribed by the Municipality and to the provisions of Ss. 34, 37A and 38, shall exercise all the powers of the Municipality. The standing committee can, therefore, exercise two kinds of powers (1) the powers conferred upon it by the Act, and (2) the residuary powers of the Municipality. The residuary powers are to be exercised subject to the provisions of S. 38 (Ss. 34 and 37A are not material for the purposes of this case) and subject to the limitations which the Municipality may prescribe in this behalf. Section 38 empowers the Municipality to appoint committees to exercise the powers and perform the duties of the Municipality in certain matters. 34 and 37A are not material for the purposes of this case) and subject to the limitations which the Municipality may prescribe in this behalf. Section 38 empowers the Municipality to appoint committees to exercise the powers and perform the duties of the Municipality in certain matters. This section further provides that the standing committee shall not exercise any powers or perform any duties which any other committee has been appointed to exercise or perform. The restriction on the standing committee imposed by this section can, therefore, only apply in respect of the residuary powers of the Municipality, and not in respect of the powers which are conferred upon the standing committee by the Act, for under sub-s. (2) of S. 37, the exercise of these powers is not made subject to the provisions of S. 38. This view has also been taken previously by this Court in Emperor v. Jesingbhai, 37 Bom LR 184 : (AIR (22) 1985 Bom 201 : 36 Cr. LJ 920). The power to sanction prosecution of persons for contravention of the provisions of the Act is given to the standing committee by S. 200 of the Act. This is not one of the residuary powers of the Municipality, and consequently the bar contained in S. 38 will not apply to it. The standing committee was, consequently, competent to accord sanction in these cases. It is true that according to the decision of this Court in Emperor v. Jesingbhai, 37 Bom LR 184 : (AIR (22) 1935 Bom 201 : 36 Cr. LJ 920), the sanitary committee could also have sanctioned the prosecution of the accused, having regard to the provisions of R. 73 made by the Municipality. But the power of the standing committee to sanction prosecutions has not been taken away by s. 38 or R. 73. The effect of the various provisions, therefore, is that both the standing committee and the sanitary committee are competent to sanction the prosecution of parsons for contravening the provisions of s. 178. We are, therefore, of the opinion that there was valid sanction for the prosecution of the accused. 3. It has also been urged that the standing committee had no power to prescribe the conditions of the licenses, which the accused were required to take out under S. 178. We are, therefore, of the opinion that there was valid sanction for the prosecution of the accused. 3. It has also been urged that the standing committee had no power to prescribe the conditions of the licenses, which the accused were required to take out under S. 178. Sub-section (2) of s. 178 states that the standing committee may grant these licenses subject to such conditions as it may deem fit. It would, therefore, appear that the standing committee was competent to prescribe these conditions. We do not, however, consider it necessary to decide this point in these appeals, because in these cases the accused have been prosecuted for using certain lands without obtaining licenses, as required by s. 178. It is admitted that the accused had not obtained licenses before they used the lands for stabling cattle. In fact, they had not even applied for the licenses. By using these lands without obtaining licenses, the accused have clearly contravened the provisions of S. 178. 4. The orders passed by the learned Magistrate acquitting these accused were, therefore, wrong. We accordingly set aside these orders, convict all the four accused under s. 178(3), Bombay Municipal Boroughs Act, and sentence each of them to pay a fine of Rs. 25, or, in default, to undergo 7 days simple imprisonment. Appeals allowed.